The opinion of the court was delivered, January 7th 1868, by

Referring to the law as laid down in Fox et al. v. Hayward, just decided, it is only necessary to quote two sentences from O’Conner v. Foster, 10 Watts 421. “ The defendants,” says Judge Sergeant, “contend that the damages should be merely nominal unless the plaintiffs show that they could not get the wheat carried by some other person. But we think it is the duty of the defendants to do this if practicable, and not of the plaintiff.”

The plaintiff claimed damages for the loss of his coal and boats by the sudden rise of the Monongahela river, and this the court directly negatived, and declared to be entirely untenable. The other claim was upon a breach of contract to tow the plaintiff’s boats of coal to Oil City from Pittsburg on the first rise of water, and the defendants subsequently refused to do so. It was also in evidence that upon the refusal of the defendants to tow in pursuance of their contract, after various attempts to procure another tow, it was found that all the other towboats were engaged, and that it was impossible to get any boats to take them, and this was not denied or disputed by' the defendants. The price of coal at Oil City was very high at that season ; the whole supply for the enormous operations in the oil regions coming from Pittsburg, and the demand for flatboats to be used in floating oil to Pittsburg, was also very greatly in excess of their value at Pittsburg.

The court charged the jury: “ In this case there is a breach of contract which renders defendants liable for the difference in the value of coal at Pittsburg and Oil City at the time the boats would have arrived there if the contract had been performed, less the cost of getting it there, which in this case appears to have. been fixed at twenty-five cents per bushel. This also applies to the boats. If they were worth more at Oil City than at Pitts-burg at the time defendants were by their contract to have had them there, then plaintiff is entitled to recover the difference.”

In this we discover no error, and the defendants pay the penalty for preferring another tow at a higher and more profitable rate.

Judgment affirmed.