#### Poland Coal Company *v.*Rogers et al., Appellants.

*Contracts*— Construction—Bale *of colee*— Amount—Approximate *total*— Deliveries—Performance—Partial *performance*— Bet-off.

Plaintiff agreed to deliver to defendants coke for a year for their “entire consumptive requirements, estimated at forty thousand (40,000) tons shipment in approximately equal monthly installments over the period below specified.” The contract further provided, “Each month’s deliveries to be treated and considered as a separate and independent contract.” Plaintiff delivered coke during part of the term of the contract, but later delivered an amount less than 3,333 1-3 tons each month. In an action for the price, the court directed the jury to give credit to the defendants against the claim of the plaintiff for coke purchased to make up such monthly deficiency. Defendants claimed further credit for coke demanded and not furnished over and above the approximate amount of 3,333 1-3 tons each month. *Held,*(1) that the direction to the jury to allow credit for loss in purchasing coke to make up the deficiencies was correct; (2) Defendant was not entitled to demand deliveries in excess of 3,333 1-3 tons a month.

Argued Oct. 16, 1917.

Appeal, No. 162, Oct. T., 1917, by defendants, from judgment of C. P. Allegheny Co., Oct. T., 1916, No. 598, on verdict for plaintiff in case of Poland Coal Company v. William A. Eogers, M. C. Armour, E. L. Billingslea, D. B. Meacbam, A. F. Fowler, W. T. Sbepard and J. *K.*Pollock, Partners, Doing Business as Eogers, Brown & Company.

Before Brown, C. *119J., Potter, Moschzisker, Frazer and Walking, JJ.

Affirmed.

Assumpsit on written contract for the sale of coke. The facts appear from the following opinion by Davis, J.:

Tbe plaintiff brings this action to recover tbe amount alleged to be due from tbe defendants for tbe delivery of coke according to tbe terms of a written contract. Its brevity is tbe reason for quoting tbe entire contract, viz:

“Pittsburgh, Pa., July 7,1915.

I. Party oe First Part :

Poland Coal Company of Pittsburgh, Pennsylvania,

Agreeing to sell

II. Party oe Second Part :

Rogers, Brown & Company of Pittsburgh, Pennsylvania,

Agreeing to buy for Columbia Chemical Company of Barberton, Ohio.

III. Quantity:

Entire consumptive requirements, estimated at forty thousand (40,000) tons for shipment in approximately equal monthly installments over the period below specified.

IV. Quality:

48 Hour Furnace Coke.

Guaranteed to average twelve per cent, or under in cash.

V. Delivery:

F. O. B. cars at ovens of party of the first part.

VI. Duration oe Contract :

From date of June 30th, 1916.

VII. Weights :

Railroad scale weights nearest to point of shipment to govern settlement.

*120VIII. Price:'

One Dollar and thirty-seven and one-half cents ($1.37%) per net ton.

IX. Terms:

Cash on the 20th of each month for all shipments made the month preceding.

X. Conditions:

Party of the first part not to be held in damages for failure to make shipments, as aforesaid, on account of shortage, railroad delays, strikes, trouble with workmen, accidents, or other causes beyond its control. Each month’s deliveries to be treated and considered as a separate and independent contract.

Made and entered into the date first above written, as witness our hands.

Poland Coal Company,

Gr. W. Forney,

Sales Manager.

Rogers, Brown & Company.

Signed in Duplicate.

The facts are admitted or undisputed, and both plaintiff and defendants presented points for binding instructions. The plaintiff’s point was partly affirmed, the defendants’ point refused, followed by this rule for judgment non obstante veredicto.

The question. involved turns upon the interpretation to be placed on the following clause of the said contract, viz:

“Quantity: Entire consumptive requirements, estimated at forty thousand (40,000) tons for shipment in approximately equal monthly installments over the period below specified.” This clause to be considered in connection with another clause of the contract which provides that, “each month’s deliveries to be treated and considered as a separate and independent contract.”

The contract and evidence further show that the con*121tract is made with the defendants as brokers and not with the consumer of the coke, and there is no evidence that the plaintiff had any knowledge of the consumptive requirements of the customer either yearly or monthly at the time of the signing of the contract except as estimated.

The plaintiff delivered coke and paid each month without any dispute until the month of November, 1916. During the subsequent months of the contract term the plaintiff fell short in its delivery of coke 2,872.80 tons below the approximate amount of 3,333 1-3 tons specified for each month. For this shortage the jury was directed to give credit to the defendants ágainst the claim of the plaintiff for coke purchased to make up the deficiency. The defendants, however, claim a further credit for coke demanded and not furnished and purchased over and above the approximate amount of 3,-333 1-3 tons each month. As an example, in the month of November, plaintiff delivered 3,514.45 tons; defendants now demand credit for an additional 791.15 tons purchased. • Also for the month of January, 1916, plaintiff delivered 2,166.95 tons; defendants now demand credit for an additional 2,876.45 tons, or a consumptive requirement for the month of January of 5,-043.40 tons, or 1,710.07 tons over and above the approximate monthly requirements.

The counsel for the defendants have cited a number of cases which, in principle they contend control the case at bar, viz: Brawley v. U. S., 96 U. S. 168; Marx v. American Malting Co., 169 Fed. 582 (6th Circuit); Smoot v. U. S., 237 U. S. 38; Wolff v. Wells Fargo & Co., 115 Fed. Rep. 32; McKeever, Cook & Co. v. Canonsburg Iron Co., 138 Pa. 184; Willock v. Crescent Oil Co., 184 Pa. 245; Tancred, Arrol & Co., v. The Steel Co. of Scotland, Ltd., 15 Law Reps. 1890 App. Cases 125.

An examination of the cases cited shows that either the quantity was fixed and then qualified by the words “more or less,” or that the amount required was to be *122furnished and then an estimated amount given or that the seller knew the quantity required or had knowledge of the probable quantity to be required.

In the case at bar we have the first stipulation, quantity “entire consumptive requirements (for the year), estimated at forty thousand (10,000) tons,” and then that the amount shall be divided into twelve separate and independent contracts, and that the plaintiff should deliver “in approximately equal monthly installments over the period below specified”; that, is, the seller is required to deliver approximately 3,333 1-3 tons each month during the period of the yearly contract.

In the sense used, the word “approximately” modifies and limits the quantity to be furnished each month to 3,333 1-3 tons, or some quantity near that amount, but which could not at the time of signing the contract be accurately ascertained.

Taking into consideration that each month’s delivery was to be treated and considered as a separate and independent contract, we cannot agree with the construction placed upon the contract by the defendants that the plaintiff was required to anticipate and provide quantities greatly in excess of the approximate stipulated amount required to be delivered each month under the terms of the contract. In effect, the plaintiff would unexpectedly be called upon in any given month to furnish any quantity of coke only limited by the full running capacity of the plant of the consumer.

We are of the opinion that the contract does not require the plaintiff to anticipate and provide for such an indefinite monthly delivery of coke.

Verdict for plaintiff for $1,511.39 and judgment thereon. Defendants appealed.

*Error assigned,*among others, was in refusing defendants’ motion for judgment non obstante veredicto.

*W. D. N. Rogers,*of *Richardson & Rogers,*with him O. *S. Richardson,*for appellants.

*123*George D.*Howell, with Mm *F. O.*Houston, for appellee.

January 7, 1918:

Per Curiam,

This judgment is affirmed on the opinion of the learned court below discharging the rule for judgment non obstante veredicto.