Oct. 3, 1881. The opinion of the Court was delivered by
Green, J.
The charge of the learned judge of the Court below was a perfectly fair and correct presentment of this case, as it stood upon the contract of the parties. But ~we encounter a practical difficulty in sustaining what he said to the jury on the subject of fraud. There was nothing legally inaccurate in his remarks as to the effect of fraudulent practices by the defendants in the measurement of the coal. If there were evidence in the case to which those remarks would be applicable, we would affirm the judgment without a moment’s hesitation. But, after a most patient and careful examination of the charge of the Coart, of the argument of the learned and able counsel for the plaintiff, and of the testimony in the cause, we are unable to discern any evidence of fraudulent conduct on the part of the defendants. The learned judge said several times in his charge that if fraud was perpetrated by the defendants or their agents, in the measurement of the coal, then the measurement was not binding upon the plaintiff, and he could recover, for the actual amount delivered. But in no part of the charge is there the least testimony tending to prove fraud, nor is any such testimony submitted to the consideration of the jury. The plaintiff admits, to its fullest extent, the binding character of his obligation to abide by the very precise method of measurement prescribed in the contract. Was that method observed ? If it was, the plaintiff is concluded. by the results. If it was not, it is his duty to show it by testimony. He cannot discharge that duty by showing that different results would have followed if a different method had been pursued. Above all, it would not be competent to prove fraud in the measurement, by proving what amount of coal ought, in the opinion of witnesses, to be produced from a cord of wood, such as the plaintiff used when coaled in the manner in which he coaled it. The very object of the agreement was to avoid all such uncertain modes of measurement, and the litigation which would naturally result from resorting to them, by prescribing a particular and exact method. In this case the very method fixed by the contract was adopted, and a most precise and definite measurement of the beds in question was made, a record of which was kept and given in evidence. There is not a particle of testimony to contradict either the fact of that measurement or its accuracy. Nor is there any evidence showing that the number of bushels to the load, as ascertained by that measurement, was incorrectly returned, or credited to the plaintiff. Topi’ove that a teamster when he asked for a square cut, was met with a smile, is entirely too indefinite and uncertain a method of establishing so grave a charge as fraud in the. measurement. It was equally incompetent to make out such a charge by proving what the beds measured at another time, before or after the delivery of coal under this contract, as that was not in accordance with the terms of the contract. If the plaintiff was dissatisfied with the results of the measurement, he should at once have complained to the defendants, and then a re-measurement could have been made while the contract was being performed. But this he did not do, and he now seeks to accomplish such results by resorting to methods not permitted by the contract.
It is to be regretted that a more precise designation of the evidence tending to show fraud has not been furnished to us. For lack of sueff information we have been compelled to expend valuable time, which we cannot spare, in searching through a large mass of testimony for details of evidence which would support the plaintiff’s allegations. With a perfect willingness to find it if it existed, and to sustain the action of the Court below in submitting the case to the jury on the question of fraud, if we could do so, we have been quite unable to discover the evidence necessary for that purpose, and we are therefore obliged to reverse the judgment on that ground.
Judgment reversed, and venire facias de novo awarded.