Hardwick v. Can Co. neither the total quantity nor the proportions of the different grades being specified; but the court held that when the contract was "read in the light of the previous business relations of the parties," it was plain that it meant that the purchaser "should buy what oil it should require for its use in its manufacturing business." Manhattan Oil Co. v. Richardson Lumber Co., 113 Fed., 923. The substance of the complainant's contention is that when the parties made the contract they had in mind some standard by which their conduct thereunder was to be regulated; and that that standard must be found in the previous relations existing between the complainant and the defendant's immediate predecessor which it had incorporated into itself, and with the defendant itself in its assumption and executing of the last preceding contract with such predecessor. It was known, of course, and figured in the calculations of the parties, that the complainant was manufacturing twenty different kinds of stoves, that he had patterns therefor, and that his business was of the character thus indicated. It was known also that the defendant was buying to supply a special character of trade, and that the stove business was uniform, in that one year with another the same trade would take about the same assortment of grades and sizes. Hence, it is seen that the character, kind, and quality, in short, the assortment of stoves covered by the contract, all lay within reasonable limits, and could be ascertained with reasonable certainty. It cannot be doubted that, in the Hardwick v. Can Co. ordinary course of business, in respect to which men generally make their calculations, if the defendant had carried out its contract and ordered the five thousand stoves, it would have ordered substantially the same kinds of stoves which were used to supply the same trade under previous contracts with the "Conklin Factory," as it anticipated doing when the contract was entered into. Equally, there can be no doubt, under the facts found by the court of chancery appeals, that the defendant's failure to carry out the contract by ordering the five thousand stoves, resulted from its determination, pending the running of the contract, to drop a certain class of its customers which it had previously supplied, viz: retail dealers; having dropped these, it then desired to escape from the contract, and is now using the element of apparent uncertainty supposed to reside in the contract, to elude the obligation to faithfully carry it out. It is the duty of the court, however, to ascertain, if it can, the meaning which the contract bore in the minds of the parties, and to enforce that meaning or intention. For the purpose of discovering this intention, we must view the situation of the parties and their surroundings so as to place ourselves in the position which they occupied, and thus be able to see the things spoken of in the contract as they saw them. Taking this point of view, with the aid of the facts found by the court of chancery appeals, we think it clear that the meaning of the contract is as above indicated, and that this enables us to attain substantial certainty. Hardwick v. Can Co. As opposing the conclusion thus reached, we are referred by defendant's counsel, especially, to the case of Kimball Bros. v. Dure Wells & Co., 108 Iowa, 676. That case, however, is not parallel in its facts, nor does it cover the present case in principle. In that case, it is true, the plaintiffs agreed to furnish the defendants certain scales known as "Columbia Scales" made from patterns then in use by the Columbia Scale Company, which the defendant was to sell in a certain territory named; and it is also true that there were several different kinds of scales of the particular make referred to, selling for different prices, and the contract did not specify what special kinds of scales the defendants were to take. After ordering a number of scales the defendants refused to take any more. Thereupon, the plaintiffs sued for damages. The contract was for one hundred and fifty sets of scales. The court held that the plaintiffs were entitled to recover damages for so many sets of scales as the defendants had refused to take less than the contract number, but that they would only be liable for the cheapest kind of scales, on the theory that the choice, or selection, lay with the defendants. One important element, however, that appears in the present case, did not appear in the case referred to; that is, the previous history of the dealings of the parties, furnishing a basis for ascertaining the assortment of goods which they had in mind. We are also referred to the case of Hixon v. Hixon, 7 Hum., 33, wherein it appeared that a defendant had Hardwick v. Can Co. contracted to pay a debt either in Tennessee, Alabama, or Georgia money, and it was held that he had the right to settle in the cheapest money. To the same effect, Miller v. McKinney, 5 Lea, 93, and Miss. & Tenn. R. R. Co. v. Green, 9 Heisk., 588, 593. These cases, and others of the same kind, cited in the brief of defendant's counsel, are distinguishable on the ground already stated; the vital difference between the cases referred to by defendant's counsel and the case before the court, being found in the fact that in the latter the parties in dealing with each other had reference to former dealings between them, and so mutually understanding each other, contracted with reference thereto, and intended that substantially the same course of conduct should be pursued between them. On the grounds stated, we are of opinion that the second defense is not well made, and that the chancellor acted correctly in directing a reference on the basis of such former dealings between the complainants and the defendant and its predecessor. The next point for consideration arises in the following manner. On the 3d of August, 1902, after the breach of the contract, the complainant gave notice to the defendant that he would sell the goods on the 25th of the same month, unless the defendant should come forward and comply with the terms of its contract. The goods were not sold on the day fixed in the notice, nor at any other time before the filing of the bill, but afterwards, in fact Hardwick v. Can Co. a considerable time after the bill had been filed. The bill was filed on the first day of September, 1902, to recover damages generally, for the failure of the defendant to take the goods, and hence really for the dif ference between the contract price and the market value at the time and place of delivery. It did not seek to recover the difference between the contract price, and the price realized upon the resale, and did not seek to recover the expenses of such resale, and, indeed, could not have done so, because, as stated, the resale took place after the bill was filed. Yet the chancellor decreed, "that complainant is entitled to recover the deficiency, if any, between the price realized for said stoves under such resale, and the price which complainant would have received from them under the contract, if said stoves had been taken and paid for by defendant in accordance with the terms of the contract, and in addition thereto the reasonable and necessary expense to complainant of reselling said stoves, and of caring for them and keeping them in salable condition until they were sold ;" and he directed a reference to the master on this basis, and the decree in favor of the complainant, before referred to, was based upon a report made by the master pursuant to the terms of the decree above stated. The court of chancery appeals affirmed this action of the chancellor. The question now to be determined is whether this action was correct. In order to a more satisfactory disposition of the mat 113 Tenn-43 |