¶1in charging the jury, said: The great rule to *53be observed in cases like this, is to do justice between the parties, by enforcing the performance of their agreement, according to the sense in which it was mutually understood and relied upon at the time of making it. Before deciding upon the question which of the parties has broken this contract, we must first ascertain the great object and true intent of the parties in its execution, as it may be gathered from the contract itself, and, if necessary, from the time, place, and circumstances under which it was made. It is contended by the learned counsel for the defendants, that Cobb was bound to proceed to Sydney, and there take in coals, and that it was never contemplated by the parties that he was to go to any other place for that purpose. That the words used in the contract are precise and clear, and that his going to Sydney and there loading his coals, is a condition precedent, the non-performance of which precludes the possibility of Cobb’s recovering in this suit. The Court is of a different opinion on this point. A strict compliance with the terms of a contract is generally necessary to entitle either party to enforce it against the other; but it is a well-settled principle of law, that if the non-compliance does not affect the essence of the contrcf — as if the contract be broken in respect of time or mode of its performance, when neither time nor mode of its performance were essential considerations — relief will be granted. In this case the great object and intention of the parties was to obtain Newcastle coals, and that with the least possible delay. Now, can it be reasonably urged that when Cobb arrived in Sydney, and found he could not obtain the coals at any price, that he forfeited his rights under the contract by going to Newcastle, one day’s sail from Sydney, and loading his vessel ? The impossibility of buying Newcastle coals in Sydney was a contingency not anticipated by either party, and certainly Cobb should not suffer from his effort to carry out the original object of obtaining the coals, so long as his going to Newcastle promoted the interests of all parties, and shortened the voyage. If it had greatly delayed the vessel, or if he had gone to any other place far distant from Sydney, and thereby prolonged the voyage, we should think differently. Sydney, the place where the coals were to be obtained, was not an essential consideration with the parties; but time was. The fluctuations of this market and that of San Francisco were all important; and the vital question in this case is, did Cobb make that despatch contemplated under the contract? Certainly when he found that he was so long delayed in Newcastle, he should have made all reasonable haste for Honolulu. He sailed from Newcastle for Sydney on the 18th of October — reached there on the next day or the day following — discharged eighty tons of coal ■ — took in other cargo, and did not sail again until the 1 Ith of November. He certainly had a right to fill his vessel, as it could not have been the intention of the parties that he should return to Honolulu half loaded; but still the question returns, did he use reasonable des-patch in these operations. Again, we find him touching at Tahiti and landing cargo. It is said he stopped there for water, having only 500 gallons, which was insufficient to last him to this port; but Captain Moore tells us that had he been in the same- situation, and desirous of making despatch for Honolulu, he thinks he would have made a reduction of the allowance and come en. Time was essential, gentlemen, and it is for you to say, in view of all the evidence, *54whether Cobb used that despatch and reasonable diligence which is required under the contract. If he did, then he is entitled to recover; if. not, then your verdict should be for the defendants.
¶2The jury, after an absence of an hour, returned into Court and rendered their verdict for the defendants, one juror dissenting.