Opinion bt
Orlady, J.,
If there was not some contractual undertaking on the part *598of the defendant to receive and pay for quarry stone to be used in building a dam on its property, it is difficult to understand the preparations made for receiving the stone by extending the icehouse siding, or why the defendant’s foreman (Trumbauer) was directed to go to tbe plaintiff’s quarry to arrange for tbe shipment of tbe stone. Tbe reason for abandoning tbe building of tbe lower dam was independent of tbe mating of tbe contract, and of tbe plaintiff’s failure to comply with its terms. The defendant’s president, in reply to a question, “ How do you know they were not ready on tbe first of June ? ” stated as follows: “ Smith, tbe contractor, went down there two or three days before and they were not ready, and be went down tbe next week and they were not ready, and I said we will have to abandon it, we will have to spend a lot of money fixing tbe old dam up ; ” and again, “ It was too late when be could not start tbe dam on the first of June.” Tbe plaintiff. denied that be was not ready to begin tbe delivery of tbe stone at tbe time stated, but whether be was or not was a question for tbe jury. Tbe subsequent correspondence, tbe conduct of tbe parties, and tbe reason given for not receiving tbe stone were all properly in evidence in order to determine tbe good faith of tbe plaintiff’s conduct, and of tbe defense interposed, as well as to whether tbe plaintiff bad not complied with tbe terms of tbe contract.
Assuming that there is an ambiguity, as to tbe measure of damages, in tbe excerpted parts of tbe charge of tbe court, which are combined to form tbe third assignment of error, an examination of tbe whole charge shows that the defendant has no reason for complamt on that ground. The jury was instructed that tbe plaintiff could recover only on an actually concluded contract, such as is set forth in tbe statement of tbe plaintiff, and tbe defendant refused to take tbe stone without showing satisfactory cause, and that tbe market value of tbe stone on band should be deducted from any claim tbe plaintiff might have against tbe defendants. While tbe evidence of value was meager, as tbe defendant did not offer any, tbe jury was obliged to deal with tbe values submitted by tbe plaintiff, kept within fair bounds by reducing bis claim nearly one half. Where tbe evidence is conflicting, tbe determination whether a contract existed, and what were its terms, -is for tbe jury to find *599from the testimony. Each party is entitled to give his version of the contract, and their opposing claims cannot be peremptorily ruled.npon by the court: 3 P. & L. Dig. of Dec. 4168. There was sufficient evidence of a parol contract to warrant the court in submitting that question to the jury, and whether it was rescinded so as to relieve the defendant from liability was purely a question of fact.
The assignments of error are overruled and the judgment is affirmed.