PHILLIPS v. RAYMOND ET AL.

and the plaintiff should refuse to make any payments for the lumber delivered to him under the contract, the defendants would have no right to refuse to deliver the whole, though they should not have received a cent, and though the plaintiff was, by the contract, bound to pay for it on delivery in the manner specified. Clearly, as it seems to me, this could not have been the intention of the parties.

But it is urged that the sixth clause of the contract, giving the plaintiff the excess, if the measurement of the lumber should overrun the scalage of the logs, is repugnant to the idea of mere security, and conclusive that the absolute property was intended to pass. In some kinds of contracts, and under a different state of circumstances, such a clause might have a strong bearing in the direction claimed. But in the present case, this view, as I have endeavored to show, would be in conflict with the whole scope and object of the contract. And when we consider that the plaintiff was making advances without any stipulation for interest, and that it would have been perfectly consistent with the idea of security only, to have inserted, in place of this stipulation, an agreement for interest at ten per cent. or for the delivery of lumber beyond what these logs should make, or that eleven hundred feet should be counted as one thousand in making delivery, it is not difficult to see that the present stipulation may stand upon the same principle; and on this view, it will be found in no way repugnant to the idea of mere security. It was competent and not unreasonable for the plaintiff, in agreeing to advance his money on these logs and to take the lumber at specified prices, to stipulate for such advantages in regard to the lumber as the defendants were willing to assent to. The fact that the defendants had the logs assessed to the plaintiff instead of themselves, can not alter the construction of the contract. This was a subsequent matter arising between other parties, and though the defendants may have been anxious

PHILLIPS v. RAYMOND ET AL.

to escape taxation, this did not change the legal effect of the instrument.

But the more important question is, first, whether the logs and lumber were to be held as security merely, for the advances to be made by the plaintiff, or these and any balance of accounts at any time his due in the course of the transaction, as claimed by the counsel for the defendants; or, second, as security both for such advances, etc., and for the performance by the defendants of the entire contract?

The contract, if we look merely to its words, is not specific upon this point; but when we consider its subject matter and the relative positions and objects of the parties, we can not suppose that security for advances upon logs, or logs and lumber, was the plaintiff's only object in requiring this security. He was not engaged in the business of lending or paying out money, and taking security merely for the purpose of getting it back, without interest, or even with it. He was carrying on the business of a chair manufacturer, in Chicago, and from this fact, and the description of the lumber, it is reasonable to suppose that his principal object, in entering into the contract, was to obtain this lumber for use in that business; and that his primary object in requiring the particular stipulations of the contract, was to secure this object. And it was to this end and for this object he agreed to, and did advance his money. We must therefore conclude that the object of this security was, not only to secure such advances, and any balance of account at any time in his favor in the course of the transaction, but also for the faithful performance, by the defendants, of the entire contract on their part.

This conclusion renders it necessary to inquire whether the defendants were in fault for refusing to deliver the lumber, or whether there was any failure or refusal of the plaintiff to perform his part of the contract which would justify the defendants in their refusal.

PHILLIPS v. RAYMOND ET AL.

It is very difficult, from the confused state of the evidence upon the point, to determine the actual state of the account between the parties at the time. From the best consideration I have been able to give it, I am not entirely satisfied in whose favor the balance was, if in fact there was any balance either way. The accounts would seem to have been nearly balanced. Perhaps upon the strict rules of evidence applied to the particular items, there might have been a balance in favor of the defendants of between $30 and $40; while there are some circumstances (not amounting to full proof) tending to show that certain other items ought to be allowed to the plaintiff, which would turn the balance in his favor.

But we do not, in the aspect which the case presents, deem it essential to ascertain precisely the state of the accounts between the parties. The defendants did not base their refusal to deliver the lumber upon the ground that the plaintiff was in arrear, or had not paid according to the contract.

There is some slight evidence that in excusing to other persons, not interested, their refusal to deliver the lumber, the defendants claimed that the plaintiff was owing them. But there is no legal evidence in the record showing, that in any of the interviews with the plaintiff's agent, who demanded the lumber, the defendants claimed that there was any thing due, or that the plaintiff had failed, in any particular, to perform his part of the contract; a claim which it would have been very natural for them to make on such an occasion, if it had any basis in fact.

On the contrary, when the defendants were requested to deliver the lumber, their reply was that "they had no lumber then belonging to John Phillips (the plaintiff); that they would ship no more lumber on this contract; that the contract was good for nothing; that they had found out the contract did not bind them, and they would deliver no more lumber on it."

PHILLIPS v. RAYMOND ET AL.

The plaintiff's agent tendered them $500 (which would have paid for the fifty thousand feet demanded), demanding the lumber, which they refused, and the money was left in the hands of Weaver for them. The agent also stated that the books showed that defendants owed the plaintiffs; and that, if plaintiff owed them anything, he would pay them in drafts at thirty and sixty days sight. To this they appear to have made no reply; and, so far from claiming any particular sum due, did not insist that there was anything due, but silently adhered to their refusal.

Payments, by the contract were to be made in drafts, and there is no evidence that the plaintiff had ever refused to pay as agreed. Under these circumstances, it does not lie with the defendants to say that if they had even claimed any particular amount due them, it would not at once have been paid. Their conduct, and the mode of their refusal, under the circumstances, certainly excused the plaintiff from any further tender of performance.

The defendants, on the second day of May, had written to the plaintiff, complaining that "owing to the rise in men's wages, their board, and all material for running their mill, they found that they were running behind in manufacturing lumber for him at $10," and they ask the plaintiff to allow them $2 more per thousand feet. This he does not seem to have acceded to. Taking this in connection. with the manner of their refusal, it would seem to authorize a slight inference at least that the true reason for their refusal was that they found they were losing money by manufacturing lumber under the contract.

But, so far as this may bear upon the state of the accounts between the parties, we decide nothing. We see no valid excuse for the refusal of the defendants to deliver. The plaintiff was therefore entitled to recover, as held in the court below; and judgment must be rendered in this court for the plaintiff, with costs in both courts.

The other Justices concurred.

THE C. AND T. R. R. Co. v. JOHN L. PERKINS.

The Cleveland and Toledo R. R. Company v. John L. Perkins.

Damages: Contract: Delay. Where cattle were delivered to a railroad company for immediate shipment, but a written contract was executed by them two days afterwards: in an action for damages for unreasonable delay;

Held, That the written contract would be the measure of the obligation of the parties from the time it was given, but that it would not merge any liability the company might have incurred by unreasonable delay previously; there being nothing in its terms to indicate such an intention.

Written contract in duplicate: Evidence. Proof of the written contract on the part of the plaintiff below was objected to, because it appeared that a duplicate was signed and left with the company at the time, and no notice had been served on the company to produce this duplicate on the, trial, but it was held that the plaintiff might rely on his own copy, and was under no obligation to call for the other.

Market price: Experts: Newspaper quotations. It is competent for witnesses to testify as to their knowledge of the market price of cattle derived from the newspapers.

Damages to cattle: Contract: Transfer. One car load of the cattle was transferred to plaintiff by another person, after they were received by the defendants, but before the written contract was entered into. The company claimed they were liable for any delay to this car load only from the time the transfer was made on their books. The Circuit Judge, charged the jury that the company was liable from the time they had actual notice of the transfer, and this charge was held to be correct.

Error to Lenawee Circuit.

Heard July 11th. Decided October 7th.

The defendant in error sued the Railroad Company to recover damages caused by an alleged unreasonable delay on the transportation of cattle, received by them at Toledo, to be transferred to Cleveland; and destined to New York. The jury rendered a verdict for plaintiff for $555. The cattle were received on the 12th of February. On the 14th of February following, duplicate contracts were executed for their transportation, and one was delivered to Perkins; each party signing his own contract; but the cattle were not forwarded until the 16th of February.

Numerous exceptions were taken at the trial: the prin cipal of which are stated in the opinion of the court.