(after stating the facts). 1. Defendant requested the court to instruct the jury as follows :

“ ‘Defendant was entitled to the full period to and including October 31, 1902, for the delivery of the coal under its contract, and the plaintiff had no right to purchase coal before that date upon the open market, and charge excess of price to defendant.’

“ If the court refuses to give this request, then defendant submits:

“ ‘ The defendant having the right to deliver coal during August, September, and October, 1902, the damages, if any, awarded, must be based on pro rata delivery during each month, in equal installments, and the difference between the contract price and the market price on the last day of each month, August, September, and October, for each month’s proportionate delivery, is the measure of plaintiff’s damages.’”

We think the parties, by their contract, contemplated a delivery of a part of the coal each month, and that the first part of the instruction was properly refused. The latter part of the instruction was in accord with the theory of the defendant throughout the taking of testimony.1 The defendant’s attorney objected to any testimony of the price *527■of coal “ unless it is limited to the last day of each month ■during the contract.”

2. It is alleged as error that the court did not, as requested, direct the jury to deduct from any damages they might find plaintiff had suffered the balance due for coal •delivered. The court did say to the jury:

“ It is agreed on' this question that, if a set-off is necessary, these pleadings may be amended so that a set-off may be pleaded. At any rate, if it is passed upon by you under the charge I have given you, it would be a bar to .any other suit concerning these eight cars of coal.”

It is true that the court did not, in express terms, as he might properly have done, direct the jury to allow this .set-off. But the amendment was allowed in the presence of the jury for the sole purpose of ending all litigation between them. Besides, the court said, in the presence of the jury, that no plea of set-off was necessary as to the coal delivered under the contract. Any j ury of intelligence would understand that these two amounts were to be allowed to defendant. We are also of the opinion that the jury did deduct them. There was no dispute about the ■amount of the coal, and the price of coal on the last day ■of each month was established by the evidence.

3. It is urged that the court erred in not instructing the jury that, if plaintiff sustained no loss on coal used for school purposes, it could not recover. It was not contemplated by the parties that this coal was to be used exclusively for schoolhouses. Plaintiff did not contract to use it solely for that purpose. It made no difference to •defendant to whom or for what use plaintiff might sell it. Defendant contracted to furnish the coal for whatever purpose plaintiff might desire to use it. The jury, under proper instructions, found that defendant had no legal excuse for not fulfilling its contract.

We find no error upon the record, and the judgment is affirmed.