The opinion of the Court was delivered by

This action is to recover damages for the alleged breach of the following contract between the plaintiff and the defendant, in which the plaintiff is the party of the first part and the defendants the party of the second part, namely: “That the party of the first part, for the considerations herein mentioned, covenants and agrees that he will, at his own charge and cost, deliver to the parties of the second part, at the landing of the party of the first part, situate about six and one-half (6}) miles North of Columbia, S. C., on the line of the C., C. & A. R. R., known as ‘Stack’s lumber yard,’ one million (1,000,000) feet of lumber, to be delivered in equal proportions in next four (4) years, at one dollar and twenty-five cents ($1.25) per hundred (100) feet for first class and one dollar ($1.00) per hundred feet for stringers and second class, payable in sixty (60) days after month of delivery; three-fourths (f) of the said quantity is to be twenty (20) feet and under in length, and the other one-fourth (£) between twenty (20) and twenty-six (26) feet in length. The parties of the second part to ‘put in’ a turnout at the landing of the party of the first part and maintain it during the term, or longer, if it be its pleasure; the party of the first part to furnish stringers and cross-ties for the construction. Now, in consideration of the faithful performance of the above provisions by the party of the first part, the parties of the second part promise and agree that they will pay for the same on the terms above mentioned.”

*96The questions presented arise exclusively on a request to charge refused by the Circuit Judge and a proposition charged by the Court, both propositions relating exclusively to the measure of damages. The plaintiff’s request to charge rests on the ground that the plaintiff had been prevented from performing his part of the contract by the refusal and neglect of the defendants to give orders for lumber, and that he had lost certain profits which he might have made had he not been prevented from performing his part of the contract. He therefore claimed that he was entitled to recover the contract price for that part of the lumber not delivered and accepted by the defendants, less what it would cost to produce such lumber.

The contract called for the delivery of a fixed quantity of lumber of two classes with corresponding prices. The lengths of the lumber are sufficiently given. Nothing is said about the other dimensions of the stocks nor the kind of lumber required, nor does there appear to be any question or any uncertainty in the contract in this respect; on the contrary, it appears that so far as the lumber was delivered it was accepted without question. The only contract on the part of the defendants was to pay for the lumber as delivered according to the terms of the contract. If there was no delivery, there was no obligation to pay. The defendants were not bound to supply the plaintiff with any further instructions as to the dimensions of the lumber than those which the contract afforded, and the plaintiff was not bound to adapt the lumber to the special needs of the defendants beyond compliance with terms of the contract. As it regards “cross-ties,” all that the contract called for was such as were needed for the construction of the turnout.

It therefore follows that the request to charge rested on a construction of the contract at variance with the true construction, inasmuch as any right to recover in the action must rest on the amount of lumber delivered or tendered under the contract, and not on the refusal or failure of the defendants to give orders for lumber. It does not appear that the plaintiff delivered or tendered the whole amount of lumber called for by the contract, consequently the whole sum called for by the contract could not be assumed as the basis of the request to charge. The charge, as requested, would have been erroneous if made, and consequently was properly refused.

*97The next point to be considered relates to the alleged error, in the charge of the Circuit Judge. The charge, as made, was “ that the measure of the damages was the difference between the contract price and the market price of the lumber at the time it was to be delivered to the defendants according to the contract.”

Under the view that has been presented, we cannot see how the charge can be regarded as a logical deduction from the case made by the pleadings and evidence. As it assumes important matters adversely to the defendants, and they are contented with it, there is no ground to set it aside for that reason. It assumes what would appear to be the most favorable case possible for the plaintiff under the view that we take of the contract, viz., that he had delivered or tendered actual delivery of the whole amount of lumber called for by the contract to the defendants; that they had refused to accept and pay for the lumber, and on that idea gives him the difference .between the market price of the lumber and the agreed contract price. If such had been the fact, and the lumber was of a marketable character, the rule of damages would have been correct as it was laid down, and it was for the jury to say, under their ruling, whether the lumber was marketable, or, in other words, whether it had a market price.

We cannot see that any rule more favorable for the plaintiff, or equally favorable, could have been laid down, nor can we conclude that the plaintiff has been in any respect prejudiced or affected otherwise than advantageously by the ruling of the Court.

The appeal must be dismissed.