Trotter v. Heckscher

1. By a. contract under seal, complainant covenanted to mine and deliver to defendants, on board cars at Franklin, 1,000 tons of franklinite ore per month for a year, guaranteeing that the ore should contain at least 26-per cent, of oxide of zinc, and agreed that on his failure to do so for thirty days defendants might take possession of the mine after giving him thirty days’ notice of tlieir intention. Defendants agreed to analyze the ore and pay for each month’s delivery on the loth' day of the succeeding month, at a desigmated scale of prices for all ore delivered containing 26 per cent, or more of- Zn. O., and at prices to be thereafter agreed on for all inferior ore accepted by them. — Held, that defendants were not bound to test the ore before •receiving it on the cars at Franklin, but might test it after it was unloaded at their works in Bethlehem, and that, by accepting ore, they were not estopped from showing that it contained less than 26 per cent, of Zn. O. 2. Under the contract above stated, defendants made full payment, at the :Stipulated prices, for all ores delivered which were up to the standard quality according to their analyses, and at prices which they thought fair for ail accepted ore of inferior grade according to their analyses (no other prices having been agreed on). Complainant demanded payment for all ore as being above ■the standard, and because of non-payment stopped delivery, and thereupon defendants gave the thirty days’ notice that they would take possession of the mine. On bill filed, the court found that some ore delivered was richer than •defendants’ analyses showed, and for ore below the standard, fixed prices higher •than those paid by defendants but lower than those demanded by complainant, and decided that when complainant stopped delivery defendants were in arrears with payments. — Held, that defendants’ conduct did not evince an intention to abandon the contract or a design not to be bound by its terms, and that complainant’s stoppage of deliveries was without justification, and that on the expiration of the notice defendants became entitled to possession of the ■mine. Blackburn v. Beilly, 18 Vr. 290, re-affirmed. 3. Under the contract above stated — Held, that defendants were not entitled, •on their cross-bill filed against complainant’s bill, for an account of ore delivered, to have their damages arising from the breach of complainant’-s covenant to deliver, assessed in equity and set off against the sum due complainant for ore •delivered. 4. The fact that cross-demands, otherwise distinct, spring out of. the same •contract, does not create an equitable right to set off one against the other.

On appeal from a decree advised by Vice-Cbancellor Bird, ■who filed the following conclusions: The issue in this case will appear by a presentation of the (pleadings. The bill shows that in the year 1877 the complain.ant became possessed of an estate for the term of thirty years in a mine of franklinite ore in Sussex county, and that on June 2d, 1881, he made an agreement with one Charles A. Heckscher, ■of Philadelphia, a full synopsis of which will appear hereafter. The bill alleges that Heckscher was the treasurer of a corporation of the state of Pennsylvania by the name of “ The Lehigh .Zinc and Iron Company, Limited,” having its works and place of business at Bethlehem, and that said agreement was made for said corporation and that it was immediately assigned to if. The bill alleges that the subject-matter of said agreement was a certain ore called franklinite, in contradistinction to what is known as zinc ore; that the latter contains for the most part the red oxide of zinc, while the said franklinite is generally known as-an iron ore but co'ntains and is composed of a very considerable proportion of the silicate of zinc in combination with manganese, and from which, by certain treatment thereof, there is derived an amount of zinc giving it increased value, and that Heckscher desired such ore for the production of both zinc and iron. The bill charges that it was contemplated by the parties that said ore, as soon as it should be raised from the mine and before it was delivered to said Heckscher on board the cars at Franklin, should be subjected to an assay, to be made by the said Heckscher, to determine the percentage of the oxide of zinc therein, and that, by the express terms of said instrument, Heckscher was not to take any ore unless it contained at least 26 per cent, of said oxide, and that if he did he was not bound to pay the contract price, but such price as should be agreed upon that the point of delivery of said ore was the railroad cars at Franklin; that as soon as the ore was delivered on said cars the property therein changed and it became the property of said Heckscher or of his assigns; that they then and there took the same, and that, as a consequence of these premises, it resulted that no assay made thereafter of said ore by said Heckscher or-his assigns was such an assay as was contemplated by said agreement ; that the acceptance thereof on board of said cars was a. taking thereof by the vendee as being the ore bargained for, and. entitled the complainant to receive therefor the contract price of' at least $3.75 for each ton. The bill charges that it was the duty of Heckscher to have a. person skilled in assaying ores always at said mine, who should assay the ores prior to the delivery thereof on board the cars, and whose assay, when made, should be immediately reported to the complainant, who, in case such assay was not satisfactory,, should appoint another assayer to test the quality 'of said ore as to the percentage of oxide of zinc, and in case the said two assayers should disagree, that then the parties should jointly appoint a third assayer, or if they disagreed as to the person, the said two assayers should make such appointment, and that his decision should be final, and further charges that in no other way could said agreement be carried out; that some disinterested per- ' son should select, from a specified quantity of ore ready for delivery, a small amount which should be a fair and just sample of the mass, the oxide of zinc in which sample would represent the oxide of zinc in the mass, and that such selection and. assaying should occur upon the ground where both parties had sight and knowledge, and if it was after delivery it would be impossible for the complainant ever to have the means of determining whether or not it was or ought to be held to be a satisfactory assay, and shows that because this construction of the contract was not adopted, and the attempt made, injudiciously at first and afterwards obstinately by the defendants, to execute it otherwise, the said parties have fallen into difficulty requiring the intervention of this court. The bill then states that when said agreement was made, it was necessary that said complainant should have funds to prepare said mines, and that it was orally agreed prior thereto that an advance of $10,000 should be made; that Heckscher did not desire to receive the 1,000 tons in June, his works not then being ready for so much, and expressly requested that none should be sent until the 16th day of June, upon which day he telegraphed for same; that the execution of said contract was not begun by said complainant until the 20th day of June, when the work commenced, it being understood that the ores sent in June should be part of the July shipment, and that from that time the complainant mined and delivered ores as rapidly and as completely as possible. The bill states that because of the illness of complainant, and other causes not within his control, he has been unable to deliver ore to the amount stipulated by said agreement, though he has delivered nearly 8,000 tons, and would have delivered much more had it not been for the disagreements detailed. The bill states that on June 8th, Heckscher made an advance, not of $10,000, as agreed, but of $6,000, and that the fact that such an advance had been made to him, and the confidence which in the beginning he felt in the good intent and the business reliability of the parties, as well as his belief that there could be no real difficulty nor any substantial difference in regard to the assay, and kindred considerations, induced complainant not to insist upon the assay of said ore prior to delivery, especially as he regarded them bound to ,pay for said ore at the contract price, if, without such previous assay, they took it, and even acquiesced, though not in such a way as to bind him, in said defendants, making their assay after receiving the ore delivered to them; and that he was assured no difficulties would occur in said assay, and that all matters should be satisfactorily adjusted, and that he did not apprehend how much difference there might be in the results through different and especially unfair sampling; that defendants rendered a report of their assay, first for part of the ore delivered in June at rates from 11.30 to 12.25 of zinc; to which complainant immediately objected, and which was acknowledged at once as erroneous; that defendants sent a sample of the ore to complainant, which he found by assay to contain 22 per cent, of zinc; that in August they sent new assays of this June and July ore, making it to contain 22 per cent.; then they employed a distinguished expert, who assayed the ore delivered in August and September, whose assays were almost the same as that made by complainant, and showed that the ore delivered contained much more than 26 per cent, of zinc; that the defendant rendered a report of the assay of the October ore at 23.88; for the November ore at 24.87, and for the December ore at 21.40, none of which the complainant believes was made by competent parties; and that no report, except a statement afterwards named, has since been made; and then states that complainant caused careful sampling and assaying of said ore to be made prior to its being sent; and that the assay delivered in July was 27 per cent., in August 28.70, in September 34.50 per cent.; and that after this the complainant made assays prior to delivering the ore, and sent his bills therefor; and that according to these assays and bills, rendered monthly, or as soon as complainant’s health would permit, he had furnished 7,573.01 tons prior to May 1st, 1882, making, without interest, due to him, $50,369.94, and with interest $51,257.99, leaving a balance due him May 15th, 1882, of $31,663.32. The bill then states that defendants refused to pay him, and because of such refusal he became embarrassed, and becoming convinced that the defendants did not intend to pay him nor to deal fairly with him, he stopped all shipments of ore, and on May 1st, 1882, notified defendants that he should not go on; that on May 11th, 1882, the defendants gave written notice that they would take possession of said mine and machinery, and take ore for their own use according to said agreement; and denies their right to take possession, because he says the event contemplated by the agreement has not arisen — that is, the inability of complainant to deliver, since during the last preceding month he delivered over 1,000 tons; and insists that he was justified in not delivering more and in not surrendering possession, since they neglected to pay the amounts due for February, March and April. The bill then shows that the defendants submitted a statement, showing a balance due to them in excess of the amount the complainant claimed, of $4,960.07, based upon assays and prices altogether variant from the true assays and prices then exhibiting the value of the ores as presented by defendants, and as ■claimed by him, thus: Per cent. Per cent, June and July, 1881, 22, when really 27 August, “ 26.28, “ 28.70 September, “ 33.60, “ 34.50 October, “ 23.88, “ 29 November, “ 24.87, “ 29.48 December, “ 21.40, “ 30.03 January,' 1882, 16.70, “ 20 February, “ 24.70, “ 35.48 March, “ 21.90, “ 38.12 April, “ 18.60, “ 40.16 Crediting the complainant with such prices as to make them owe only $1.67-J per ton for all the ore by them received, excepting •that delivered in August (548.02 tons), at $3.89, and 262.13-tons at $7.55, which they seek to justify by saying that $1.67J was the market price of mangan iron ore, while nearly 3,375 tons-contained on an average on their own showing 24.12 per cent., and had a much greater value than iron ore, while of the remainder, about 4,100, one-half ranged at nearly 22 per cent.,, according to their erroneous report, and the other half from 17 to 19. It is then stated that defendants gave notice on May 22d, 1882, that at the expiration of the time for the delivery of the 12,000 tons they would assert and exercise the right which they claim to take, and would take regular monthly quantities of ore from said mine, according to said agreement, until March 6th, 1907, the complainant insisting that it is thus-apparent that the defendants intend to take possession of the mine, and to keep it until 1907, taking ore as they please, paying therefor according to assays corresponding to those already presented; and charges that the defendants designed to render it impossible for the complainant to comply with his contract, and furnish the 1,000 tons per month by withholding his pay,, thereby producing what followed — the cessation of the delivery of the ore — and that they intend, if they get possession, to retain it, take what ore they please, upon assays however erroneous,, making the expense of mining what they please; and charges-that all difference has arisen from the failure of the defendants to abide by the contract, and that it is for this court to-give relief, and to enforce the contract, and, if need be, to reform it so as to make it conform to the intention of the parties; again, insisting that the place of delivery was Franklin; that it was the duty of defendants to cause an assay to be made before accepting the same, to ascertain whether or not it contained 26 per cent, of zinc, since if it did not they were not bound to take it; so that if such assay should be erroneous the complainant might appoint an assayer, and then, in case of disagreement, a third one could be appointed. All these material points are covered by appropriate prayers,, with prayers for an account and for an injunction. I have thus given a full and fair synopsis of the bill, because the very able arguments of counsel on final hearing are most skillfully interwoven with the facts in the bill showing to the practiced eye both the strength and weakness of the complainant’s case. The answer declares that defendants purchased large and valuable works, engaged labor and entered into extensive contracts solely on the basis of said agreement, absolutely needing the amount of ore of the quality agreed upon at the times specified, admitting what is said in the bill respecting the combinations which form this ore. The answer denies that by said agreement the ore should be assayed at the mine before delivery; denies that by the terms of the agreement, or otherwise, the defendants were to take any ore unless the same contained 26 per cent, of said oxide, and admits that they were not compelled to take or pay for any ore containing less than said percentage of oxide; avers that by section 9 of the agreement it was provided that if said mine should be incapable of producing the quantity of ore required of the value of 26 per cent, by assay, but should be capable of producing an inferior quality of ore, below 26 per cent., the said defendants should have the privilege of taking any quantity of said inferior ore at such rate as might be agreed upon between the parties, not to exceed $3.75 per ton, or the market value of iron ore as mangan iron ore. The answer denies that upon the delivery of the ore on the cars at Franklin the property therein was so transferred that the defendants took the same without any right thereafter of making an assay thereof; denies that such acceptance on board the cars was such taking of the same as being the one bargained for as entitled the complainant to receive at least $3.75 without assay or the finding out of the percentage of said oxide, insisting that such construction would be unjust to both, binding defendants to pay too high for ores containing less than 26 per cent, and preventing the complainant from receiving the additional fifty cents for every 1 per cent, above 26, and avers that the statement in reference to the delivery of the ore on the cars at Franklin merely settled the point at which the relative expense of delivery and transportation was to be adjusted, and nothing more, and also avers that complainant must have so understood the agreement, for he never weighed any ore at the mine but took the weight from the railroad company, who weighed it at Hackettstown, thirty miles away, where it was weighed under the directions of complainant; and says that on the 24th of June, 1881, on receipt of the first ore from complainant, one John Price "Wetherill, on behalf of defendants, wrote to complainant advising him of the proposed mode and place of sampling and assaying at the company’s works, as follows: “ I have received to date nine cars of ore and one car of limestone that you have shipped. I will run through the Blake crusher one cart-load from each car, and will run through the fine crusher one wheelbarrow of each cart-load run through the Blake; from this I will take a number of handfuls over the pile, and from these, when thoroughly mixed together, take samples for analysis. This I suggest as a fair method of arriving at the value of the ore. Shall be pleased to have any suggestions you may have to offer on the subject. I will have analysis made now of the nine cars shipped, in order that you may know how it runs and as a guide for further shipments.” To which complainant replied the next day, thus: “ Yours of 24th instant received. Your method of sampling for assay is as good as can be devised, and fair to both; I would only suggest that you wait until you receive this week’s shipments, about two hundred tons, and then take your samples.” Thus, at the outset, agreeing upon the place and method of sampling, which has been strictly pursued by the defendants until April, 1882, without any objection by the complainant .until the filing of his bill. The answer says that William Dixson had charge of the oxide works of defendant, and that he was appointed thereto at the solicitation and recommendation of complainant as a competent and upright man for the position, and that he sampled all the ores, and that there were no conveniences or opportunity at the mine to sample and crush said ores as is by the bill, for the first time, suggested, and denies that the contract requires that defendants should always have a person skilled in assaying ores at the mine, who should assay the ores before delivery, and whose assay should immediately be reported to complainant. The answer further says that the method of sampling above named, which was adopted by them and approved by the complainant, is the most perfect that can be adopted short of crushing the whole mass ; and denies that the method stated by the complainant can give just results; and avers that no one can select from a specified quantity of ore ready for delivery, containing all grades of quality down to absolutely worthless ore, any amount or specimen which could be a fair and just sample of the mass or ton, and show therefrom the proper percentage of the mass, insisting it could only show the percentage of the sample, but not of the mass, unless such mass were homogeneous and of equally distributed value; and that the methods claimed by complainant, that sampling should be done at the mine, were first stated in this bill; and that defendants repeatedly invited complainant to visit or to send anyone to visit their works, and to inspect the process of'sampling and assaying, offering the fullest opportunity of examining the same, as well as their books, and inviting suggestions as to any improvements. The defendants deny that there ever was any understanding, before or after the contract was executed, that Heckscher would advance $10,000 to enable complainant to carry out the contract,, but aver that after the execution of the contract the complainant said that he was without money to carry it out, and would take it as a great favor if Heckscher would advance him money to work the mine; that Heckscher asked how much it would require, and complainant said about $6,000, whereupon Heckscher gave him a draft for that amount. The defendants deny that the causes of non-delivery of the stipulated quantities and quality were beyond the complainant’s control; admit that at the time of filing said bill he had delivered less than 8,000 tons, and aver that he had delivered only 7,576.14 of every kind, including limestone; deny that in any case there was any unfair sampling or assaying; say that the first 114 tons were sampled according to agreement by letters of June- 24th and 25th, 1881, portions of which samples were submitted to Professor Mahan, of the Lehigh University, and also to Professor Charles P. Williams, mining chemist, of Philadelphia, and that the former returned as the rate of oxide of zinc, 12.25; and the latter, making two tests, one of 11.30, and the other of 11.31, ■and that they sent samples of the same to complainant, who .suggested that they should postpone sampling until defendants received 200 tons more of ore, which they did, and then sampled .and assayed the June and July ores, in all 9884/20 tons, and found the aggregate mass to contain a percentage of zinc of 22.06; ■denying any acknowledgment of erroneous sampling, but admitting that the whole of June and July shipments contained 22.06 percentage per ton of zinc. Defendants admit that the assay for the August delivery was made by Professor Genth, and say that that was so because Professor Mahan had gone to Baltimore; and say that the September assay was made by George G. Convers, and that from thence he has been the defendants’ chemist and assayer, and has made all assays for them. Defendants insist upon the correctness of their sampling and assaying, and deny that the sampling and assaying of complainant is correct; deny that they owe complainant anything, but insist that they have overpaid him on the ores delivered $4,077.99. The defendants admit serving the notice that they would take possession of the mine after thirty days, and claim they had the right to, and had been guaranteed the possession, and insist that in no month had the complainant delivered the quantity of ore he had agreed to deliver. Defendants say they were always ready to settle the question of assaying, according to the contract, but that defendant insisted that his assays were right, and never suggested a resort to the mode provided by the agreement; deny any wish to take possession of said mines, except to secure themselves from loss; say that if complainant had mined properly he could have furnished them 1,000 tons per month of 26 per cent, ore; say that, seeing his inability and inefficiency, they offered to aid him, but their aid was declined; deny that there is any necessity for a change in, or reformation of, said contract. The defendants also allege that they have sustained heavy damages by reason of the breach of the contract on the part of the complainant, amplifying the allegation by cross-bill, showing how, and giving the amount as very large — over $59,000. We have here the points of contest between the parties, arising out of an ordinary contract respecting one of the most extraordinary mineral combinations. In general terms, the contract may be said to be very plain, and to require no effort at interpretation. Eirst, the complainant agrees that he is entitled to, and has the possession of, the mine for thirty years; .second, that he will deliver to the defendants, on board the cars at Franklin, 12,000 tons of ore in regular monthly shipments of 1,000 tons each; third, that he guarantees that said ore shall contain at least 26 per cent, of oxide of zinc, and that the defendants shall not be compelled to -take or pay for any ■ore containing less than 26 per cent., and if the assays made from time to time by defendants to determine the percentage are not satisfactory to the complainant, he then shall appoint an •assayer to test the quality of said ore, and if the two do not agree, then the parties to the agreement shall appoint a third, and if the parties cannot agree, then the two assayers shall .appoint the third, whose report shall be final and binding; defendants shall pay $3.75 per ton for every ton containing by assay 26 per cent, of zinc, and fifty cents for every ton containing an additional 1 per cent.; fourth, that if the complainant sba.ll fail for thirty days to deliver the monthly quantity of ore, the defendants may, at their option, after thirty days’ notice, take possession of the mine and machinery, and remove therefrom the amount of ore specified, charging the cost to the complainant, the said complainant guaranteeing to said defendants the possession of the mine until his inability shall be removed; fifth, that at the expiration of the period for the delivery of 12,000 tons, the defendants shall have the privilege of taking regular monthly quantities of said ore for the remainder of the said thirty years, or for a less time, upon notice stating the time and the amount; sixth, that if they elect to take a minimum quantity of 12,000 tons per annum for the additional term, then complainant shall not sell auy ores assaying 26 per cent, or over to any other person; seventh, that if said complainant shall obtain possession of any adjoining mine, he will give the defendants the first option of purchasing the ore at the same price and on the same terms above named; eighth, that said defendants shall have the right of storing all-ore on the surface at or near the mines free of charge; ninth, that the contract shall terminate in case the ores or mines shall give out, and if the defendants’ works shall be destroyed or become useless, they shall have the privilege also to rescind the contract; if, however, the said mines shall be incapable of producing the quantity of ore required, of at least 26 per cent., but shall be capable of producing an inferior quality, the defendants shall have the privilege of taking any quantity of said inferior ore at such rate as may be agreed upon between the parties, such price not to exceed $3.75 per ton, or the market value of said ore as mangan iron ore; tenth, that at all times the defendants may enter upon the premises and inspect them, and if necessary provide such protection for them and their working as to them shall seem fit. Plainly, although the contract is in respect to an extraordinary matter, the ordinary rules of interpretation must prevail. The parties are in dispute as to the place where the sampling is to be done, and as to the manner of taking the samples. As to the past, I can see no ground for hesitation. If there be a serious difficulty in determining what the parties intended as-to the place of sampling (whether it should be done at Franklin, before delivery, or at Bethlehem), if the place was contemplated at all, they have, by their conduct, wholly relieved. tbe court. Sampling and assaying were vital points in the contract to the complainant. Whether the compensation for his risks, expenditures and leases should be the paltry price of mangan iron ore, or $3.75 and upwards, depended upon the correctness and completeness of the sampling and assaying. These involved many thousands of dollars to him. Both the sampling and the assaying were difficult and uncertain in the extreme. It seems that nothing so taxes and tests the skill, knowledge and patience of chemists as the determination, with scientific certainty, of the percentage of the oxide of zinc in a given mass from a particular sample selected from that mass. It is uncertain whether the sample is a fair one or not; there is always room for doubt. And it is uncertain whether the assay is absolutely correct and perfect. Contingencies supervene and thwart all wisdom, ingenuity or tact. The same chemist will reach different results from the same sample and from the same materials; and different chemists of equal celebrity, experience and honesty will obtain results so far apart, from the same samples, as to baffle their own understanding. The difficulty is not in the science of chemistry nor the weakness of the artist, but in the ore. Let anyone examine a score of pieces, large or-small, and he will discover the source of trouble, and will have-none the less faith in the science. Yet, notwithstanding the uncertainty spoken of, any fair system of sampling, honestly pursued, would, if the assaying were done by any of the gentlemen referred to, reasonably effectuate the intention of the parties under a contract disposing of 12,000 tons of such ore. Each particular effort of the sampler and assayer may not be perfect, but in the end the balances will be even. The difficulties alluded to were not unknown to the complainant before this contract. He had some knowledge of this ore, its use, its value and of the method pursued iu manufacture to make that value most available. He had himself been engaged with a Mr. Dixson, extracting the oxide of zinc from this ore. With this knowledge he entered into this contract. With this knowledge, and only eighteen days after the execution of the contract, he shipped nine car-loads of ore to the defendants, without asking them to take samples or make assays before delivery. He took samples of these nine cars at the mine before delivery, but he neither made the fact of so doing known to the defendants, nor did he object to the method of sampling proposed by them after the delivery. These cars were sent on June 22d; on the 24th defendants wrote to complainant, saying: "‘Will run through the Blake crusher one cart-load from each car, and will run through the fine crusher one wheelbarrow of each cart-load run through the Blake; from this I will take a number of handfuls over the pile, and from these, when thoroughly mixed together, take samples for analysis. This I suggest as a fair method of arriving at the value of the ore. Shall be pleased to have any suggestions you may have to offer on the subject. I will have analysis made now of the nine cars shipped, in order that you may know how it runs, and as a guide for future shipments. Mr. Dixson thinks it is about the same quality as ore from which he obtained a furnace-yield of 26.8 per cent., and that we can probably work it a little clearer.” To which letter of the 25th the complainant replied “ Your method of sampling and for assay is as good as can be devised, and fair to both.” This letter also shows his knowledge of the ores, and of the method of extraction of the zinc oxide. These nine cars were sampled, and assays made therefrom by defendants through Professor Mahan. His first trial gave him 11.25 per cent, of oxide of zinc,- and the second 12.25. These results were promptly reported to complainant. By another trial, but which, I think, included samples from two hundred tons additional, the defendants showed a result of 22 per cent. The defendants sent portions of their samples to the complainant. One of these portions he had analyzed by Mr. Wendt, whose report showed 31.24 per cent., a vast difference, making, if true, at the rate per month many hundreds of dollars in favor of complainant. This was in July, and it appears that complainant did not complain of the modes of the defendants for some time thereafter. But I think he did of their results as reported. When asked how soon he notified the company of his dissatisfaction, he said: “ I can’t fix the date in my mind, but I think it was before the close of the year.” I think, unless fraud or mistakes be disclosed, the sampling •done by the defendants should be adopted as the basis of calculation in ascertaining whether they have paid for all the ores delivered before the commencement of this suit or not. On this point the complainant’s acquiescence is all-controlling. The chemist of .his own selection discovered, he claims, an error of about nine per cent, in the first shipments for June and July. This he at •once understood; yet he continued to ship ore. As I understand • complainant’s testimony, he only had one of the samples forwarded to him by the defendants, assayed before sent, and when .asked why he did not have the rest, said, “ I had no faith in their being correct, or but what they were all doctored up and fixed.” With the knowledge which he so promptly acquired, .and the want of confidence entertained by him, he had no right to continue delivering ores, if he intended to question the right •of defendants to sample at their works, to which he had con•■sentedso approvingly in his letter of June 25th, 1881. The law .holds him responsible for his delay or indifference. He had all power in his own hands. He could have stopped all deliveries and had his rights determined as well in July or August, 1881, as in May, 1882. The contract provided ample protection for him. I cannot conclude that reason has been disclosed for impeaching the sampling done by defendants on the grounds either of fraud or mistake. It will be perceived, then, that up to the filing of the bill, the parties themselves interpreted the contract with respect to the place of sampling, and the right of the defendants to do the .sampling, and that the court has adopted their interpretation. As a necessary consequence, I must accept of the assays made from those samples so far as I believe them to be tree from fraud .or mistake. The defendants say the following percentages are the correct ones, viz.: June and July ores, 22.06 ; August, 26.28; .September, 33.60; October, 23.88; November, 24.87; December, 21.40; January, 16.70; February, 24.70; March, 21.90; April, 18.60. Taking the June and July ores, it appears that Professor Mahan made three assays from samples taken from the whole-mass, i. e. 51 cars; the result, 20.04, 20.03, and 22.07 per cent. Portions of these samples which were forwarded by the defendants to the complainant were, after the commencement of this-suit, submitted by counsel of complainant to Dr. Allen for assay, and his test shows 18.15 and 18.37 per cent. Counsel also submitted like portions of the same samples to Dr. Howe, whose figures are 19.71, 18.24 and 18.71 per cent. Other portions of the same samples were, under the direction of the court, submitted to Professor Van Dyke, who reported 18.225, 19.315, and 23.25. All of these, except the last one,.are below the rate allowed by the defendants. That rate, 22.06, I shall adopt. Taking the August ores, it appears that Dr. Genth made three-assays from the samples produced, showing 25.48, 29.07 and 29.-81 per cent. As in the former case, Prof. Allen made trial and reported 25.62, 29.53 and 30.02, as did Prof. Howe, who re■ported 25.60, 29.62 and 30.07. From these same ores Prof Van Dyke reports 25.31, 29.25 and 29.655. The defendants adopt the average of 26.28. But if it be fair to make an average the guide, I think it should be of all the assays of one or the other. Such average of Prof. Genth’s efforts is 28.12, of Prof.. Allen’s, 28.39, of Prof. Howe’s, 28.43 and of Prof Van Dyke’s,. 28.06. I am inclined to accept the last, since he displayed very great care, but since the defendants selected Dr. Genth as their assayer, and he is so eminent, and since the other two professors,, equally distinguished, are still higher, I will adopt the average of the rate named by Prof. Genth — 28.12. Taking the September ores and the assay of Prof. Converse, to whom the defendants committed their samples for that month, and we have a percentage of 33.60. Prof Allen renders 33.46, Prof Howe,-33.42 and Prof Van Dyke, 32.43. I have not met with any reason for rejecting the first rate — 33.60. It is the-report of the professor chosen by the defendants, and they sought-no other. Taking the October -ores and the assay as made by Prof. Converse, there appears a percentage of 23.88; as -by Prof. Wendt, of 23.27; by Prof. Howe, of 27.92, and by Prof. Van Dyke, of 27.85. How shall this be adjusted? Which shall I follow ? Which is least likely to be in error ? I think the last. ■Great care was taken in that assay to be right. There was trial in duplicate. It is sustained by Prof. Howe. It may properly be said that Prof. Converse took duplicates also, and that he is .■sustained by Prof. Wendt, and this is true; but I have not before me the results of the labors of the latter gentlemen on samples furnished the defendants so numerously as the others, and therefore not the same opportunity to assure my trust in his ability, and, besides, in such case a decision must be rendered, .and when all other considerations are equal, the independence or freedom from bias of the witness not unfrequently turns the .scale. Therefore, for October I will adopt the rate of 27.85. Taking ores for November, Prof. Converse fixes the rate at 2487; Prof. Howe at 27.17, and Prof. Van Dyke at 26.70. For the reasons which controlled me in the last instance, I will be governed by Prof. Van Dyke’s value — 26.70. Taking the December ores, and the same professors present these tests: Converse 21.40, Howe 23.06 and Van Dyke 22.74. I shall take the last — 22.74. Taking January .ores, and Professor Converse gives us 16.70, Professor Wendt 16.11 and 19.05, and Professor Van Dyke '23.27. I am best satisfied with the last — 23.27. Taking February ores, and the report from Professor Converse is 20.70, Professor Howe 29.20, and Professor Van Dyke 28.67. I shall adopt the 28.67. The March ores Professor Converse reports at 21.90, Professor Allen 28.50, Professor Howe 28.50, and Professor Van Dyke 27.97. My guide in accounting will be 27.97. And the April ores Professor Converse gives at 18.80, Professor Allen 22.32, Professor Howe 22.57, and Professor Van Dyke at 22.18. I will accept the 22.18. When the results given by Professor Converse after September are compared with those of Professors Allen, Howe and Van Dyke, the difference is so great as to force the conclusion that •there must have been some mistake in assaying on his part. Such, at least, is the most decided, preponderance of the testimony. I say, in my judgment, there is a mistake on the part of Professor Converse, for I understand his assays were from the same samples used by the other professors; not different samples from the same mass, but one carefully-selected sample. This settles, according to my view, the amount of ore to be accounted for at the price of $3.75 per ton for such as yielded 26 per cent, and upward. What of that which yields less ? The parties have not contracted with so much certainty on this head. The language used is, that if said mine— “Shall be capable of producing an inferior quality of ore below the said 26 per cent, of oxide of zinc, the said Charles A. Hecksclier * * * shall have the privilege of taking any quantity of the said inferior ore at such rate as may be agreed upon between the parties, such price not to exceed $3.75 per ton, * * * or the market value of said ore as mangan iron ore.” The parties are not agreed as to the value. There is no proof of the value in the market of such ores, except as mangan iron ores. The market value of mangan ore is established. But I do not understand that the contract gives to the defendants the-absolute right to fix the price of all ores which yield less than 26 per cent, at the market price of mangan iron ore. The insistment of the defendants cannot prevail without changing the position and relation of the last two members of the sentence last quoted, then making it thus : “ At such rate as may be agreed upon between the parties, or the market-value of said ore as mangan iron ore, such price not to exceed $3.75 per ton.”' Such juxtaposition of the different members connected by the-conjunction would give the defendants the benefit of the alternative which they claim, and bring them within the rule approved in Iiurd v. Kelly, 78 N. Y. 588. But the contract is-not so written. We must construe it as it stands? The parties-have said the inferior ore shall be paid for at a price agreed! upon, not to exceed $3.75, or it shall be the market value of' iron ore. The highest price per ton was $3.75. If the conten— tion of the defendants be not correct, as I think it is not, why, then, was the phrase “ or the market value of said ore as mangan iron ore ” added ? If it was not added to enable the defendants arbitrarily to fix the price at the market value, however low, of mangan iron ore, then what ore did the parties have in mind-at the time? It seems to me that this phrase was used to fix, beyond question, the lowest price. The highest had been nárned, i. e., $3.75. They decided to name the lowest. Thus they excluded all discussion beyond certain limits. I must give place to this phrase and effect. I can see no other reasonable effect to assign to it than that no ore accepted by the defendants shall be paid for at a less rate than the market value of mangan iron ore. Supposing this to be right, what shall be the judgment of the court as to the value of the ores shipped in this case which assayed below 26 per cent, of oxide of zinc? Shall the court, in every case, fix the value at the price or value of mangan iron ore simply because the parties have not agreed? No; for in that event the court would be arbitrarily doing, to overcome a difficulty, what it believes the defendants cannot do. Being entirely without proof as to the value of these ores, except as mangan iron ore, which is $1.67 per ton, and that price being considerably more than one-half less than the value of these ores when they yield 26 per cent, oxide of zinc, and the parties agreeing that when they yielded less than 26 per cent, they should not exceed in price $3.75, showing that they contemplated the possibility of their being worth that sum, and they, by their contract, advancing the price at a given rate where the ores exceed 26 per cent, in richness, I feel it clearly ray duty to continue the scale downward from the point at which they started upward, and in like proportions, until I reach the market value of such ores as mangan iron ores. Taking the results of the assays as I have accepted them, we find, in the descent, no ores delivered that have any higher value than that of mangan iron ore. Under this head, came the ores for June, July and December, 1881, and for April, 1882. The foregoing, I think, disposes of the principal matters in dispute at the time of the filing of the bill excepting the right of the complainant to the injunction obtained. The place of sampling, under the contract, still remains to be determined. In fixing values thus far, for the purpose of accounting, I have found myself influenced by the action of the complainant. On his own motion he shipped nine car loads of ore to defendants, without insisting upon the ore first being sampled and assayed by them, to ascertain its value; and although he afterwards expressed dissatisfaction with the sampling and assaying, yet he shipped again and again for nine months, and then ceased shipping, as I understand the case, not because the defendants did not do their sampling before delivery, but because they did not account and pay for all the ore which had been delivered. After all this, and after the complainant had been invited to visit the works of the defendants and witness their methods, and had declined, and after it had, in the nature of things, become impossible for the defendants to make sampling or assaying before delivery, or to inspect the manner of sampling adopted by the complainant, I consider it too late to reject the sampling of defendants; especially where they had in the most open and frank way left their hands open to the complainant and given him every chance to judge of the honesty and correctness of their proceeding, and more especially when it aj>pears that they are still able to produce before the court portions of the same samples, of the value of which the court, by the aid of the most trusted experts, can judge. But counsel for the complainant insists that, though the complainant’s conduct should furnish a guide to the court’s judgment in fixing values prior to filing the bill, such conduct did not irrevocably determine his course, but that he could change his conduct and stand upon the agreement. In this, as a general principle, I agree with the counsel of the complainant. I suppose if there were serious doubt upon the question involved, the uniform and unhesitating action of the parties at the commencement of the fulfillment of the contract continued some months, would of itself relieve the court of any embarrassment as to what the parties intended, or as to what its decree should be. But where ■there is no reasonable doubt as to the order of events contemplated by the parties as expressed on the face of the instrument, .a course of conduct running through a few months should not seal the course of action for all time to come, if the contract speaks ■to the contrary. I think I have now before me such a case. Therefore, the question now is, When that agreement was executed, when and where did the parties intend to have the sampling and assaying done? Were these things to be done at the mines, before the delivery to the defendants, or at the works of the defendants at Bethlehem, after delivery ? It is of some value ■to observe that prior to and at the time of executing the contract, the defendants had possession of the works at Bethlehem for the manufacture of zinc, which included the best known apparatus for sampling such ores. These facts were known to the complainant. He also knew that the defendants wanted franklinite ores for the purpose of manufacturing such oxide of zinc as only can be made from that ore. He knew or supposed he knew ■the characteristic qualities of that ore. I am so convinced of this that I believe had anyone questioned his knowledge it would have been regarded as a high offence by him. I would not say this did I not believe that the complainant is a most thoroughly conscientious man, and as self-reliant as he is conscientious. He did not want any one to tell him the nice shades of difference between different parcels of these ores. He had handled ores and had manufactured zinc, and could he not tell what the fire and the furnace would produce ? He was acting upon his own instructed and enlightened understanding, and he was ready to contract for the delivery of ores that would produce by assay 26 per cent, of oxide of zinc, and to guarantee that it would produce that rate. What I mean is, that the ■complainant thought that he so well understood these ores that he would have no difficulty in furnishing ores of the required .grade, and hence “ guarantees that all the said ores so to be delivered as aforesaid shall contain at least 26 per cent, of oxide of zinc.” It seems to me that if the value was to have been determined before delivery by the defendants, no such clause as that first quoted would have been thought of or inserted. Wherefore should Mr. Trotter guarantee the value to be at least 26 per cent., if the contract provided that Mr. Heckscher should ascertain its value before Mr. Trotter delivered it ? If the agreement provided, for an actual test before there was any liability to attach, then the guaranty clause is without application and wholly nugatory. To my mind, at least, this view is strengthened by what may be gathered from the memorandum for the agreement made and signed by Mr. Trotter, on May 26th, and from the agreement, itself, made and signed on June 2d. The former provides that “ the percentage of the oxide of zinc is to be determined by two assays of an average sampling of every 1,000 tons shipped, one made by each party hereto,” and in case of disagreement providing for a third assayer; the latter provides that “ if the assays'taken. from time to time by the said Charles A. Heckscher, * * *■ to determine the percentage of oxide of zinc, are not satisfactory to the said Charles W. Trotter, * * * then the said Charles-~W. Trotter shall appoint an assayer to test the quality of said ore as to the percentage of oxide of zinc,” also providing for a. third assayer in case of disagreement. These two items show that the contracting parties at first contemplated making an assay each for himself, but afterwards decided to avoid all that formality, and resolved that the duty of delivering ore of the-grade of 26 per cent, should devolve on Mr. Trotter, and of ascertaining its actual value upon Mr. Heckscher, which course-admits of it being done at the works of defendants. It has been urged that this view is unreasonable and inequitable. Considering it as I have, it would be a sufficient answer to-say that I find it so in the contract, made by a highly intelligent- and capable man; and since he comes into equity to ask the aid of the court to enforce the contract, he should not be heard when he asks the other party to submit to an agreement which he himself declares inequitable, for what he now asks, if enforced,, would only be a reversal of the situation of the parties. But I do not find the agreement in this regard unreasonable or inequitable. Excepting a question of personal convenience, the-contract is as full and fair as it can be. It is not so convenient for Mr. Trotter to have an expert at Bethlehem, perhaps, as at the mines. It would not be so convenient for Mr. Heckseher to erect his sampling-works at the mines and have his sampler there in attendance. But this I cannot consider, for the parties-determined it by their agreement. And this I say is fair. There is ample protection t-o Mr. Trotter. There is an express-provision for an expert to make assays in the interests of Mr. Trotter, or at his instance, in case he is dissatisfied, and in. case-of error, the party in the wrong shall bear- all the expenses. It will at once be perceived that these conclusions- lead me to-the adoption of the results certified to by the manager since his-appointment, and which has been the basis of payment. Perhaps I ought to express my judgment as to the side on which is to be found the preponderance of testimony upon the-question of sampling. It seems to me to be greatly in favor of' the method used at Bethlehem. I rely entirely upon the testimony of the experts. I have not been unmindful of the force of the position taken by the counsel of complainant, wherein they insisted that defendants were liable for all ores shipped, at the rate of $3.75 per ton, whether they assayed 26 per cent, of zinc oxide or not, because, by the terms of the contract, title passed to the defendants as soon as the ores were placed on board the cars at Franklin. As this controversy stands before me, I think it is not so -much a question of where the title passed, as it is as to-the value of what did pass. All the ores which were shipped by the complainant were used by the defendants, and they must pay for them. The complainant agreed that he would accept of certain rates for the ore when ascertained; he certainly cannot ask anything more. I can conceive of no event in which a court of equity would compel a defendant to pay for more than he actually received under his contract of purchase. The contract is that the defendants shall pay for all ores delivered on board the cars a certain price, according to their value in oxide of zinc, which value is to be ascertained by the defendants, after the delivery, by assay made from samples. Under the law, I think the title passed so far as to cast the risk of loss on defendants (though this is not decided, because not a question in the ■case, but only referred to to illustrate), yet the proof shows that the weight of the ores, as well as their value in zinc, was not ascertained until they had been carried several miles by rail. The parties so contracted, and an examination of many cases satisfied me that not one can be found which will compel the defendants to pay for ore until the defendants themselves have had a reasonable opportunity of ascertaining what percentage of zinc it contains by assay from samples. Yet, perhaps I ought to say that there are cases which show that property would not pass under this contract on delivery on board the cars, because something remained to be done, one of which is Stephens v. Santee, N. Y. 36, which is in conformity to the third rule laid down by Benjamin in his work on Sales, book 2 ch. 3.- There was a difference between the parties as to the tonnage of ore for April, 1882. I think the testimony shows the amount was 1,096.07. I will advise an accounting in accordance with the views above expressed. Unless the parties agree as to what the result will be, I will advise a reference to a master to make the calculation. I will not advise that the injunction now in force be made perpetual; nor do I deem it wise to advise its dissolution. Nor would it be prudent or consistent with established rules for the court to take one step further towards enforcing this contract than by its restraining powers to prevent either party from violating its provisions by positive infractions. The injunction will remain. Either party will be at liberty to move the court for relief by petition, upon any branch of the case embraced within the scope of the present bill. Mr. Trotter has a right to mine the ore himself. There are difficulties — difficulties which render it impossible for him, or for any one, to render 1,000 tons per month, without an expense that would be almost ruinous. That more ore could have been produced is most plain; yet it is equally plain to have produced the stipulated quantity per month, of the standard value, from the pinched or narrow veins, removing, as was absolutely necessary, the immense amount of useless material, would have made it very costly to Mr. Trotter. How far he was bound to go in order to execute his part of the-contract in this respect, I do not pretend to decide. I purposely avoid that consideration. But I allude to the part to show that I have the difficulties attending the task in my mind, where I say that Mr. Trotter has the right to dig these ores himself. The court is bound to let him try. Do the defendants say he-has had a fair trial ? But after what has passed and been presented to the court, since the filing of the bill, I do not hesitate to say that Mr. Trotter ought to be permitted to try again. If there is any profit to him in the way of economy he is entitled to it. A slight extravagance might at once exhaust all the advantages of the enterprise to him. This should not be if he can succeed. I say if he can, for I do not forget that Mr. Trotter entered into a solemn agreement to furnish a fixed amount of ores each month. But it must not be overlooked that the agreement, on its face, shows that the parties considered that they were contracting about something that was out of sight, or about a possibility of that something being so reduced as to be worth nothing, or becoming wholly exhausted. Now, I do not think, looking to the fwbwre, and basing the view on the revelations made since May, 1882, that it would be quite right or equitable to allow the defendants to take possession of that mine, and, at all hazards, extract 1,000 tons of ore each month, charging the cost to Mr. Trotter. In saying this I do not mean to be understood as giving the slightest encouragement to indifference or neglect or inefficiency on the part of Mr. Trotter. I only say that I consider myself wholly justified in permitting him to try again — and try, too, without acting under any agency or management of any court. I will not advise the continuance of a manager. The duty of Mr. Trotter is plain. It is his boast, and, I think, a most reasonable one, that he can execute this contract. He has had, through his agents, large experience. Eor eighteen months he and they have been under the instruction of the most careful management that the court or the state could afford. The very means which the court have invoked to execute this contract are at his command. He need not fail. If he lacks ■either wisdom or experience, let him ask. Then, I doubt not, he can reasonably perform his contract. These same observations apply to the sampling and assaying. The contract is not silent on these points of interest. If the defendants fail on this head they do it at their peril. The contract ■expressly provides the right of review by the complainant at the expense of the defendants, in case of error. Their work on these heads must be openly done. If the complainant desires to be present at the sampling he has a right to be, either in person or by his agent. He has a right to select such portions of the samples taken for assay as he desires, if applied for in reasonable time. If, in these respects, the defendants do not abide by the contract, the court will, at any time, interpose. I have given this case the attention which its importance demands. I feel unable to go any farther, or to do anything less, on either side. It may be said on both sides that these conclusions are needlessly cautious; but at no step have I felt that-1 could offer any justification for exchanging the voluntary agreement of the parties for the arbitrary will of the court. As to the damages which the defendants insist upon, as above intimated, I avoid expressing any opinion. Under the circumstances of the case, and considering the allegations of the cross-bill, and the fact that no demurrer thereto was taken, I thought it my duty to admit evidence which otherwise would have been inadmissible. As the case stands, all that the course of practice in this court will allow is for the enforcement of the decree in this court to be held in abeyance (in case it should be in favor of the complainant) until the defendants can establish their ■damages at law. I will so advise.