Lord Trayner — The contract here, which was a verbal contract as distinguished from a contract constituted by writing, was entered into in March 1898. Under this contract the defenders were bound to deliver a certain quantity of coal in as nearly as possible equal quantities per month. The meaning and effect of such a contract was the subject of decision in the case of Ireland & Son v. Merryton Coal Company , 21 R. 989, and that case must be followed so far as applicable. Upon this contract before us certain monthly deliveries were made. It appears from the statement of the pursuers that in some months there were full deliveries, and that in some there were not. No demand seems to have been made for larger deliveries in these months when delivery fell short of the average quantity, and in August, the last month of the contract, more was delivered than the average monthly quantity. In that month the parties had a meeting, and recognised mutually that there were some 700 tons still to be delivered under the contract. Whether the defenders were right or wrong as to their legal position when they made that admission it is needless to inquire, because they then agreed to deliver this balance of 700 tons in September, on the same terms as regards price as those set forth in the contract. That agreement they failed to fulfil, to the damage of the pursuers. For that damage the pursuers are entitled to decree, and no question is raised as to the amount of it. It is just the difference between contract price and the price paid by pursuers in the market for coal bought by them to supply the place of what the defenders had failed to deliver.
Lord Moncreiff was absent.
The Court adhered.
Counsel for Pursuers—Solicitor-General ( Dickson, Q. C.)— M'Clure. Agents— Beveridge, Sutherland, & Smith, S.S.C.
Counsel for Defenders— W. Campbell, Q.C.— Constable. Agents— Constable & Johnstone, W.S.