Mr. Justice Terry concurred.

By the terms of the contract, it is clear that at least a portion of the cattle and sheep were to he delivered in each of the months named in the contract. As to what particular time in each month the delivery was to take place, depended upon the subsequent agreement of the parties.

When however the defendants, on the-day of April gave to the plaintiff a delivery order for a certain number of sheep, this order, accepted by the plaintiff, fixed the time of delivery. It was then to be made within a reasonable and convenient time after the presentation of the order.

When the order was presented, Thompson, to whom it was directed, was informed that the sheep were to be taken on board the steamer Sea Bird, on her return trip. This, it appears from the evidence, would have taken between three and four days, and was therefore a reasonable time, as it appears that the sheep were only twenty-five or thirty miles distant. No objection was made as to the time by Thompson, and at first he answered that the plaintiff could have the sheep. The next morning he declined the delivery which he had before assented to, on the ground that it was Holy Week, a festival of the Catholic Church, and therefore he could not obtain laborers to perform the work necessary to a delivery.

This was a breach of the contract, because the time of delivery being fixed, the inability to obtain laborers was a misfortune of the defendants, and was not provided against by the terms of the contract. It therefore entitles the plaintiff to his action.

The notice or declaration of the plaintiff that he rescinded the contract as to the sheep, amounts to nothing which can affect his rights in this action. The contract was entire, and he could not abandon a part and hold to another part. Indeed he had no power to rescind, because that term implies the volition and action of both parties. The effect of his conduct connected with his bringing this suit, is that he abandoned the contract and relied upon his action for damages.

The point as to this claim being within the Statutes of Frauds, is not well taken. It was a guaranty cotemporaneous with another contract, and was therefore a part of that contract. In the latter the consideration is fully expressed, and if it be said that this latter is only signed by the defendants in their character as agents, yet it has been done in a form which binds them personally. The name of the principal is not signed to the contract. The defendants sign their own names, describing themselves as agents. The effect of this we decided at the last Term, in the case of Sayre v. Nichols.

The Statute of Frauds, while it requires the consideration to be expressed in writing, does not limit the expression to the same piece of paper which contains the undertaking. The object of the statute is to avoid perjuries. It requires the consideration to be in writing and signed by the party to be charged, but there is no reason why the un *105 dertaking may not be in one instrument, and the consideration of it expressed in another. This would only be like the case of an absolute sale of land by one instrument in writing, and a defeasance executed separately. These have been always construed to he one instrument, and therefore to operate as a mortgage.

The remaining error relied on is as to the instruction of the Court to the jury, directing them if they found for the plaintiff, to assess as damages the amount of the penalty fixed in the defendants’ guarantee.

In terms this was certainly erroneous, because the cerreet measure of damages is the actual loss. But have the defendants sustained any injury by this instruction; for unless they have, it is beyond our power to reverse the judgment on that ground. It seems that the plaintiffs, by the terms of their contract, were to pay in advance ten per cent, of the whole price, which payment the defendant agreed to receive and allow with interest at the rate of five per cent, per month. This ten per cent, was paid by the plaintiff, and amounted to the sum of $3,862 50. This sum with the agreed interest was as much a part of the measure of damages as any other incident possibly could he. And this sum with the interest calculated at the agreed rate to the time of judgment, would amount to more than fifty per cent, above the result of the rule of damages laid down by the Court below. This must have been so evident to the judge who tried the ease, that we can only come to the conclusion that the object of his direction as to damages, was to limit the recovery against the defendants to the specific amount fixed in their guaranty. And this conclusion is the more readily reached when we find that, in the opinion of the judge refusing a new trial, he expressly declares that the recovery on this ground would have exceeded the penalty of the defendants’ undertaking.

It results from this examination of the record that there is no error, and the judgment is affirmed.