Parkins v. Missouri P. R. Co. wit, 30,000 cubic yards of the kind and quality described therein, and that the defendant had wrongfully refused to receive the same, to his damage in the sum of $9,000, for which he prayed judgment. The answer of the defendant contained the following: "Further answering this defendant says, that by the terms and conditions of said agreement so executed on October 5, 1892, it was agreed between the parties that the gravel to be delivered by the plaintiff to this defendant should be good, clean, marketable gravel, such as should be, in the judgment of the superintendent of this answering defendant, suitable for ballasting the road-bed of this defendant, and such like gravel was to be delivered at such times and in such amounts as should be designated by this defendant company, or its superintendent; that it took certain quantities of gravel delivered by said plaintiff, and paid for the same; that it was impossible to determine, without using the same, whether the gravel furnished by the plaintiff was suitable for ballasting the road-bed of the defendant company, and for that purpose a portion of such gravel was received, used and paid for, to the extent taken; that after using the same it became evident, and it was the judgment and opinion of the superintendent of this defendant company, that the gravel furnished by the plaintiff was not suitable for ballasting defendant's road-bed, and was not in accordance with the contract made between the parties, and said plaintiff was notified that the gravel furnished by him was not, in the judgment of defendant's superintendent, suitable for ballasting the road-bed of this defendant, and that no more of such gravel would be taken or used for such purpose. And the gravel so furnished by said plaintiff was, as a matter of fact, unfit and unsuitable for the purpose for which the same was contracted to be purchased, and said plaintiff was so informed, and the contract was terminated; that under the terms and conditions of said agree ment the superintendent of defendant's company was made the sole judge as to the gravel being fit and suitable for the purpose of ballasting defendant's road-bed." Parkins v. Missouri P. R. Co. The plaintiff for his reply denied the foregoing allegations of the answer, and alleged that the defendant received 21,816 yards of gravel, and used the same for ballasting its said road-bed, and made no complaint in regard to the same during the three years following October 5, 1892. Denied that it was the judgment and opinion of the superintendent of the defendant that the gravel furnished by the plaintiff was not suitable for ballasting defendant's road-bed, and was not in accordance with the contract made between the parties, and denied that plaintiff was notified that the gravel furnished by him was not, in the judgment of the defendant's superintendent, suitable for ballasting the road-bed of this defendant; and that no more of such gravel would. be taken for that purpose; denied that the gravel so furnished by the said plaintiff was unfit and unsuitable for the purpose for which the same was contracted to be purchased, and alleged that it was suitable in the judg ment of the superintendent of the defendant for ballasting defendant's road-bed; was the kind of gravel contracted for by said agreement. Denied each and every allegation in the second paragraph of the answer not admitted to be true, and alleged that the defendant received the said 21,816 cubic yards of gravel as stated in the petition, and used the same for the purpose for which it was delivered, viz., for ballasting defendant's road-bed; and that after the time for the delivery of the balance of the said gravel had expired, the defendant acting without reason, and arbitrarily in the premises, refused to receive the balance of the gravel contracted for by said agreement for the purpose of avoiding and escaping its liability under said contract. Upon these issues the cause was tried to a jury, and a verdict was returned in favor of the defendant. A motion for a new trial was overruled; judgment was rendered on the verdict, and the plaintiff prosecutes error to this court. 1. The plaintiff's first contention is, that the verdict Parkins v. Missouri P. R. Co. is not sustained by sufficient evidence; is contrary to the evidence and is clearly wrong. A careful reading of the bill of exceptions discloses that after the contract was entered into on the 5th of October, 1892, about 2,000 yards of gravel were delivered before plaintiff ceased work for the winter in the gravel pit. This gravel was used, not for ballasting purposes, but as a top dressing upon a portion of the road that had been ballasted with stone. During the summer of 1893, about 12,000 yards of gravel were delivered to the defendant, a portion of which was used for ballast on certain parts of its road-bed. It is shown beyond question that the 14,000 yards thus furnished by the plaintiff, and accepted by the defendant, came from the Springfield gravel pit, which had been inspected by the superintendent and road master of the defendant company, and was the gravel both parties had in contemplation at the time the contract was entered into. It conclusively appears that in 1894, the plaintiff leased the old abandoned Union Pacific gravel pit, which was some distance from the Springfield pit, of one Birkhauser, under an arrangement by which the gravel, if taken from that pit, would cost him only about one cent a cubic yard, whereas the gravel taken from the Springfield pit, which was the one in contemplation at the time. the contract was entered into, would cost him twentyfive cents per cubic yard. In addition to this it cost about fifteen cents per cubic yard to load the same upon the After having leased the Union Pacific pit the plaintiff furnished to the defendant, without its knowledge or consent, about 6.000 yards of gravel therefrom, instead of from the Springfield pit, and this fact might have had something to do with the question of the quality of the gravel furnished. It appears from the evidence of the superintendent of the defendant company, its road master and the engineer, that it had been experimenting with this gravel to ascertain whether or not it was suitable for ballast, and it was determined, as soon as practicable, which was in the spring of 1895, that it would not answer Parkins v. Missouri P. R. Co. This for that purpose at all. It appears that the gravel in question was round and smooth like beans; that it would not hold together, and would not hold the ties in place; that a person walking on it would sink into it the same as though he were walking on dry beans; that it worked out from under the ties, causing low joints, and it was impossible while using it to keep the track in line. It was shown that at one place where they had been experimenting with this gravel, and using it for ballast, an accident had occurred on account of its poor quality; that as soon as it was ascertained that the gravel was unsuitable, in the judgment of the superintendent, for ballasting purposes, notice was given to the plaintiff of that fact and the contract was thus terminated. evidence is undisputed, and the fact of the unsuitableness of the gravel in question was shown by a large number of expert witnesses, men who had been engaged in railroading for many years with this company and with the Union Pacific Railway Company, and there was considerable evidence that wherever this gravel had been used upon the line of the Union Pacific it had to be removed and replaced by other ballast, because it was worthless for that purpose. The testimony was overwhelming that the gravel was, as a matter of fact, unsuitable for ballast; and this evidence was offered to rebut the claim made by the plaintiff that the defendant's superintendent had acted unreasonably and arbitrarily in arriving at his judgment as to the unsuitableness of the gravel for ballasting purposes. No evidence was introduced or offered by the plaintiff to show that the gravel was suitable for the purpose for which it was purchased, and the plaintiff admitted in his testimony that he had many conversations with the defendant's superintendent, in which they discussed the question, and remedies were suggested between them, and different modes of treating it with other material so as to render it suitable were discussed. It further appears from the evidence that the plaintiff has since furnished gravel to the defendant, but not for Parkins v. Missouri P. R. Co. ballasting; that defendant has never accepted or received any gravel on the contract in question, for that purpose, since it notified the plaintiff that the gravel was unsuitable for ballast in the judgment of its superintendent, and that it would not take any more of it under the contract. It thus appears that there was sufficient evidence to sustain the verdict, and in passing we might well remark that it seems to us that the preponderance of the evidence was with the defendant. 2. It is contended that the court erred in giving paragraph No. 2 of its charge to the jury. It appears that the court in instructing the jury in this case, in order to state the issues for them to determine, copied the pleadings, and in his second instruction, calling attention thereto, told the jury that the plaintiff was required to establish the material allegations of his petition by a preponderance of the evidence, and that the defendant was required to establish the material allegations set forth in his answer, which were denied by the reply, by a preponderance of the evidence. While this manner of instructing a jury ought not to be commended, yet under the circumstances in this case, we are unable to say that it was prejudicial to either the plaintiff or the defendant. Plaintiff cites no authority in his brief to sustain his contention, and we hold that the giving of this instruction was not reversible error. 3. The giving of instruction No. 3 is complained of, because it is claimed that the court did not properly define what was meant by a preponderance of the evidence. The instruction is as follows: "By a preponderance of the evidence is meant greater weight of the evidence as viewed by you after a careful consideration of all of the evidence introduced in the case." This instruction is correct so far as it goes. It is not as full and explicit as it might have been, but the plaintiff's remedy was to tender such an instruction as he deemed proper. Where an instruction is not sufficiently |