(after stating the facts). — Considering the evidence and the instructions given, we have concluded that the case was correctly presented to the jury. We must treat this case as it was tried in the lower court, that is to say on the theory that the waiver claimed was properly before the court. Correctly and accurately the waiver of time for the performance of the contract claimed to have been extended by reason of the letter of the 23d of March from the defendants to plaintiff should have been pleaded by way of reply. See Ehrlich v. Life Ins. Co., 103 Mo. 231, 15 S. W. 530, This last case is also authority in support of the action of the trial court in refusing the 10th instruction asked by the defendant. There was no such proof in the case of the existence of a general custom as to constitute it a fixed element of contract; no proof of a custom which was certain, settled and uniform, and that being so this particular 10th instruction was properly refused. Nor is there any pretense of evidence to bring home to plaintiff a knowledge of any custom. The other instructions were properly refused, first because each of them sounded on this matter of custom, and second, for the reasons stated *23by the court, that is, they ignored the waiver in the letter of the 23d of March. In point of fact that letter, in so many words, waived immediate delivery and really set-, tied this case against defendants, provided the shipment was made within a reasonable time. On the proposition as to the liability of the plaintiff to the defendants for' non-delivery of the three cars as originally contracted, for, and on which the counterclaim rests, we think that the law which governs and controls this is set out in Berthold v. St. Louis Electric Const. Co., 165 Mo. 280, 65 S. W. 784, where at page 304, our Supreme Court said; “If one party to a contract while engaged in executing the same is notified by the other party that he has annulled and repudiated the contract and will not longer abide by it, the first party may stop, and without tendering . . . further performance of the contract, bring his action to recover the contract price for the work performed or goods furnished, and for his damages for the difference between the contract price and what it would, have cost to perform the uncompleted part. [Black River Lumber Company v. Warner, 93 Mo. 374, 6 S. W. 210; Gabriel v. Brick Co., 57 Mo. App. 520; Chapman v. Railroad, 146 Mo. 493-4, 48 S. W. 646.]”
In the case at bar plaintiff has not chosen to sue for damages alleged to have been sustained from loss of profits on all the three cars but merely for his loss on the two cars which he shipped.
Our conclusion upon the whole case is that it was correctly tried and that the verdict and judgment are for the right party. The judgment of the circuit court is accordingly affirmed.
All concur.