cause the only "time specified" in the writing was the time on or before April 1, 1900.

To the counsel of each of these parties this contract seems plain and unambiguous, and its meaning certain, and yet it has an entirely different signification to the representatives of each of these corporations. This fact, repeated perusals, and a careful study of the writing present very convincing evidence that its terms are not altogether clear, that they were well calculated to raise this controversy; and that they are susceptible of two constructions. It remains to determine which is the more natural, probable, and rational interpretation.

There is no evidence in the record that either of the two interpretations urged upon our consideration would have deterred either of the parties from entering into the agreement. What they intended to stipulate, what they understood the contract to mean, and what they would have done if their interpretation of it had been different, can be deduced only from the contract itself, the situation of the parties, and the circumstances surrounding them when they made it.

It is undoubtedly true that the railway company expected when it entered into the contract that it would sustain serious losses if the cars were not delivered on or before April 1, 1900, and that it did sustain such losses on account of the excusable delays in delivery. This fact, however, is insufficient to prove that "the time specified," within which a failure to deliver the cars would subject the plaintiff to the liquidated damages, was limited to the time prior to April 2, 1900, because it is met by the equally potent consideration that the car company must have known when the agreement was made that it would be liable to great losses for excusable delays if it agreed to pay damages for such delays after April 1, 1900. In other words, the interest of each of the parties was as great when the contract was made as it is now to obtain the agreement which it now claims. that it has secured, and the respective interests of the parties are not determinative of the construction that should be given to rhe agreement.

Nor is the contention of counsel for the railway company that the presumption is that the parties did not contemplate a breach of the contract, and hence that the demurrage must have been provided for the excusable as well as for the inexcusable delays, persuasive, because the demurrage clause is, in essence, a stipulation for the measurement of possible damages; because damages are indemnity for the breach of a contract or of a duty; because stipulations to liquidate possible damages for delays in the fulfillment of contracts for construction and manufacture, for the purpose of securing their prompt performance, are customary, and in such contracts the presumption and the practice are to anticipate and make provision for a possible failure of the contractor or manufacturer in the prompt performance of his work. I Sutherland on Damages (2d Ed.) pp. 582, 583, and 584, and cases cited in notes. Moreover, this clause of the contract unquestionably stipulates for demurrage for the inex-. cusable delays the delays caused by the acts or omissions of the car

company-and this fact is conclusive proof that the parties did contemplate a possible breach of the agreement when they made it.

While the word "but," which opens the damage clause, ordinarily expresses antithesis, it is not of such paramount importance or significance as to dominate or seriously influence the decision of the grave question here at issue. Nor have we been able to find anything in the fact that this stipulation closes with the words "after the said April 1st, 1900," decisive of this question. So far as we are able to discover, the contract would have the same meaning without these words that it has with them. In other words, they are demonstrably tautological, and have no legal effect, whether the construction asserted by the plaintiff or that maintained by the defendant is given to the contract. This fact is demonstrable by assuming that the postponement of the time of delivery by the excusable delays. was one month, or until May 1, 1900. Then "the time specified," according to the railway company's contention, would be the time between December 19, 1899, and April 2, 1900; and, according to the car company's contention, it would be the time between December 19, 1899, and May 2, 1900. Insert this time in the stipulation for demurrage in the place of the words "the time specified," and omit the term "after the said April 1st, 1900," and it will read:

"But it is agreed that in the event of the failure of the party of the first part to make and deliver the cars aforesaid within the time between December 19, 1899, and April 2, 1900 [as the railway company insists] or within the time between December 19, 1899, and May 2, 1900 [as the car company maintains], then it shall forfeit and pay to the party of the second part as liquidated damages consequent upon such failure the sum of five dollars per day for each car so delayed."

It is clear that there could not be any liability on the part of the car company for demurrage under this stipulation prior to April 2, 1900, under either construction, because by the preceding part of the contract the railway company agrees that the plaintiff shall have until April 2, 1900, to make its deliveries, and because the clause providing for the demurrage stipulates for none prior to that date, whether the interpretation of the plaintiff or that of the defendant is adopted. Now, add to the clause the words "after the said April 1st, 1900,' and they add nothing and take nothing away from its legal effect or significance under either construction, because, in the absence of these words, damages for demurrage prior to April 2, 1900, are no more recoverable than in their presence. The word "so," before "delayed," about which much was said upon the argument, is in the same category. The cars "so delayed" are those delayed in the time and manner stated in the preceding part of the agreement. If "the time specified" is the time prior to April 2, 1900, as the railway company insists, then the cars "so delayed" are those delivered after April 1, 1900. If, on the other hand, "the time specified" is, as the car company contends, the time prior to May 2, 1900, then the cars "so delayed" are those that are not delivered until after May 1, 1900. After all is said, the meaning of the term "the time specified" conditions the determination of the whole question; and

the words "but," "so," and "after the said April 1st, 1900," give no clear indication of its true interpretation.

It is said that "within the time specified" must mean the time anterior to April 2, 1900, because that is the only exact, specific time mentioned in the portion of the agreement preceding the stipulation for damages. But to specify is to mention specifically, to name distinctly, and the fact that the delivery of the cars on or before April I, 1900, was to be subject to the delays caused by the unavoidable contingencies stated in the contract, and hence that the time of delivery was to be extended thereby, was as specifically mentioned and as distinctly named in the earlier part of the agreement as was the date of April 1, 1900. It was a distinctly stated and clearly specified part of the contract preceding the damage clause that the time within which the car company might lawfully deliver the cars was the time prior to April 2, 1900, plus the time it might be delayed by the unavoidable contingencies. The words "the time specified" refer back to the time during which the cars might be delivered under the preceding paragraph of the agreement, and there is nothing in the word "specified" or in its definition to restrict the signification of the term under consideration to one part, or to exclude another part of the time distinctly named in the earlier paragraph of the contract. On the other hand, when by the foregoing paragraph of the agreement the stipulation had been made that the cars might be delivered within the time prior to April 2, 1900, plus the time the car company might be delayed by the specified acts beyond its control, and the parties went on in their agreement to say that, if the car company failed to make the delivery "within the time specified," it should "forfeit and pay to the party of the second part as liquidated damages consequent upon such failure five dollars per day for each and every car so delayed," the natural and rational inference was that the time specified was all the time within which the parties had agreed that the delivery might be made, and not a part of that time.

It is unquestionably true that the car company had the right to deliver, and that the railway company obligated itself to accept the delivery of, these cars within any time after April 1, 1900, to which the delivery might be postponed by the excusable delays mentioned in the agreement; and there is great force in the argument of the counsel for the railway company that it is unreasonable to suppose, and is improbable, that the defendant would have made this obligation, and would have subjected itself to the certain losses consequent upon these delays, without a corresponding obligation on the part of the company to indemnify it against them. But when the entire contract, the situation of the parties, the surrounding circumstances, and the terms of the agreement are thoughtfully considered, this argument is more than overcome by the following considerations: The car company was certainly unwilling to agree to deliver the cars on or before April 1, 1900. It was unwilling to take the chances of the losses on account of the delays in the manufacture and delivery that might be caused by the unavoidable contingencies named in the agreement. It therefore demanded and secured from the railway company a stipulation that it might deliver, and that the defend

ant would receive, these cars after April 1, 1900, during the time that their delivery might be delayed on account of the specified contingencies. It demanded and secured this stipulation for the purpose, of relieving itself from the liability for damages which it might incur if, without this agreement, it was prevented by matters beyond its control from making its deliveries by April 1, 1900. In the face of this fact, is it reasonable to suppose, is it probable, that at the same time that it insisted upon and obtained this stipulation to relieve itself from possible damages that might accrue from its failure to deliver on account of these possible delays, it also agreed to pay to the railway company $2,000 per day for every day that the delivery of the cars might be postponed by the happening of these unavoidable contingencies, and a proportionate amount for the like postponement of the delivery of every car? A negative answer seems to be the more rational reply to this question. An agreement by a party to pay damages for events beyond its control, against which it has already stipulated, is certainly an unusual contract, out of the ordinary course of business, and unlikely to be made by a party of ordinary prudence and sagacity. Moreover, the stipulation under consideration is for the forfeiture and payment of damages for the failure of the car company to deliver within the specified time. The words "failure," "damages," and "forfeit" all point, not to a stipulation whereby a new liability is created, but to one in which the indemnity against injury that is likely to result from the failure to perform a stipulation already made is measured. They are words commonly used, and naturally applicable to the treatment of defaults within the control of the party who undertakes to forfeit and pay the damages. The damages one pays or agrees to pay usually consist of indemnity for injuries caused by his own breach of duty or of contract, and not to losses which another sustains from events over which the former has no control. In the ordinary course of business, the failures for which one forfeits and pays, or agrees to forfeit and pay, damages, are generally those resulting from his own fault or negligence, not those caused by unavoidable contingencies against liability, for which he has already stipulated. There were or there might have been inexcusable delays in the delivery of these cars, to which the words under consideration fitly apply; and there is nothing in the agreement, the situation, or the circumstances of the parties to persuade that they used, or intended to use, them in any extraordinary or unusual sense.

While the question is not free from difficulty, the fact that in the first part of this agreement these parties contracted that the car company might deliver, and the railway company would accept, the cars within the time prior to April 2, 1900, plus the time after April 1, 1900, within which the delivery might be delayed by the unavoidable contingencies described in the agreement, the fact that it is unusual for one to agree to pay damages for losses caused by events over which he has no control, and against which he has stipulated, while it is customary for one to promise to pay liquidated damages for losses caused by his own breaches of duty or of contract, and the fact that losses of the latter character, to which the stipulation

for damages in this agreement may well apply, were possible and were probably contemplated by the parties when the contract was. made, the fact that the more natural and rational application of the words "failure," "damages," and "forfeit and pay," in the stipulation wherein the car company agrees to forfeit liquidated damages for its failure to deliver the cars, is to a measurement of the damages for a failure to perform the agreement to deliver, already recited in the earlier part of the contract, and not to a stipulation to create a new liability for the excusable delays against which the company had already stipulated; and the fact that the term "the time specified," during which there could be no failure under the damage clause, does not specifically except any, but naturally includes all the time specified for the delivery of the cars in the foregoing paragraph of the contract (that is to say, all the time prior to April 2, 1900, plus the time after April 1, 1900, during which the delivery might be delayed by the unavoidable contingencies)-all these facts, and the considerations and arguments they suggest, converge with compelling force to persuade that the parties to this agreement never intended to contract that the car company should pay the damages stipulated in the agreement for the time during which the deliveries were delayed by the unavoidable contingencies against which it stipulated, but that their intention was that the agreement for liquidated damages should apply only to delays beyond the time within which the car company was bound to deliver the cars under the earlier paragraph of the contract. This construction evolves a more reasonable and probable agreement than that for which the railway company contends, and the subject-matter of the contract, the situation and surroundings of the parties when they made it, the terms of the damage clause, and a consideration of all the stipulations of the agreement together, furnish cogent arguments in support of it. Our conclusion, therefore, is that the car company was not liable, under the contract, to pay the liquidated damages for which it stipulated during the time within which it was permitted to deliver the cars under the first part of the contract, but that its agreement was to pay those damages for all the time during which any of the deliveries were postponed by its own act, neglect, or default.

It is assigned as error that the court rejected testimony offered by the car company to show that the parties themselves construed the contract as we have interpreted it. But it is unnecessary to consider the question raised by this assignment, because the conclusion already reached necessitates a reversal of the judgment, and because by a consideration of the agreement itself we have reached the result which the evidence was offered to attain.

It is contended that the court erred because it refused to instruct the jury that the provision of the contract for the payment of the $5 per car for every day that the cars were delayed after the time specified was a stipulation for a penalty, and not for liquidated damages, and that, as no actual damages had been proved, the railway company was entitled to no allowance for the delay in the delivery of the cars, whether it was caused by the car company or otherwise. But where it is certain that some damages will result if there is a