[Sheffield Furnace Co. v. Hull Coal & Coke Co.] Wall. 50; Lowber v. Bangs, 2 Wall. 728; Railroad Co. v. Trimble, 10 Wall. 367; Steinbach v. Stewart, 11 Wall. 566; Comer v. Bankhead, 70 Ala. 141. If it were conceded that, the first contract, was in its inception optional with the plaintiff, or wanting in mutuality, when the plaintiff accepted or exercised whatever of option was conferred, or performed that part of the contract in consideration of which the promise was made, the contract ceased to be optional, or wanting in mutuality. -Atlee v. Bartholomew, 5 Amer. St. 113, note; Cherry v. Smith, 39 Amer. Dec. 150 and note; L'Amoreux v. Gould, 3 Seld. 349; White v. Baxter, 71 N. Y. 254; Willetts v. Sun Mutual Ins. Co., 45 N. Y.45. The evidence shows that immediately upon entering into the first contract, the plaintiff arranged for the production of the full supply of coke necessary to fill the engagement with the defendant. And after this, the second contract was made. The plaintiff having no further use for any option, therefore, made the absolute engagement shown in the second contract. Standing then in the light of the circumstances of the parties at the date of the second contract, after the plaintiff had had ovens erected and had contracted for a full supply of coke to fill the contract, we see that there can be no doubt about the stipulations in that contract.-1 Indexed Dig. U. S., S. C. Rep. 430, § 177. Here, then, plaintiff first promised, in consideration of defendant's promise, to endeavor to have the ovens provided for filling the contract, and, second, that being accomplished, to deliver the coke in quantity and at the rate specified-the defendant promising to take the coke as stipulated. It is plain, then, that on the plaintiff's performing the first promise, and making the provision for the manufacture of the coke, there is no longer any right in the defendant to say, there is a want of consideration to it for its promise to receive the coke. -Bishop on Contracts, §§ 85,87; Storm v. U. S., 94 U.S. 83;1 Wharton on Contr., § 524; L'Amoreur v. Gould, 3 Seldon, 349; Atlee v. Bartholomew, 5 Amer. St. Rep. 103 and note. The second contention of counsel for appellant is based on the assumption of their first being correct, and is, that the contract being executory as to the delivery, the plaintiff had on option only and was under no obli [Sheffield Furnace Co. v. Hull Coal & Coke Co.] gation to deliver, and that the defendant had the right to rescind the contract as to all undelivered instalments. The fallacy of this position is in its base. The contract we have seen was mutual and binding. The defendant, by the terms of its contract, gave its orders for the delivery of the whole amount of coke contracted for, in instalments at the rate of about ten cars per day until the whole quantity was delivered, and the plaintiff accepted the order and agreed to make the delivery. There was a promise for a promise, each of which was absolute. Addison on Contracts, § 18; Storm v. U. S., 94 U.S.83; Pollock's Principles of Cont., (Wald's Ed.) 160. We do not dispute the proposition that custom or usage can not be introduced to change the plain terms of a contract. But if there is anything doubtful or ambiguous, or if the custom can have force as a term of the contract, without displacing the plain meaning of the express terms, it is permissible to interpret the contract in the light of such custom.-Haas & Bro. v. Hudmon Bros. & Co., 83 Ala. 174, 3 So. Rep. 302; Robinson v. U. S., 13 Wall. 363; Smith v. Aikin, 75 Ala. 209. We submit that the evidence falls directly within the rules under which usage may be proved. The contract is clearly ambiguous. And the usage does not necessarily conflict with the meaning of the other terms of the contract that is the terms of the contract do not expressly or by necessary implication exclude the usage they do not show "that the parties did not mean to be governed by it." Clarke's Brown on Usages and Customs, §§ 41 and 46; Collender v. Dinsmore, 55 N. Y. 200; Walls v. Bailey, 49 N. Y. 464; 1 Smith's Lead. Cases, (8 Ed.), 934 et seq.; Smith v. Clews, 11 Amer. St. Rep. 627, and n.; Haas & Bro. v. Hudmon Bros. & Co., 83 Ala. 174, 3 So. Rep. 302; Smith v. Aiken, 75 Ala. 209; E. T. V. & G. R. R. Co. v. Johnston, 75 Ala. 604; 2 Wharton on Law of Evidence, §§ 966-7-8-9, 971-2; Lawson on Usages and Customs, 435. It is undoubtedly true, as stated by counsel, that if the party will not accept the renunciation, and continues to insist on the performance of the promise, the contract remains for the benefit and at the risk of both parties, and if anything occurs to discharge it from other causes, the promisor may take advantage of such discharge. But, in the first place, no point was raised in the lower [Sheffield Furnace Co. v. Hull Coal & Coke Co.] court, or appears by assignment of error in this court, on the effect of waivers of renunciations of contracts by subsequent negotiations or otherwise. And, in the next place, we submit, that, if the party renouncing will not, and does not, accept the offer of the other party to waive the renunciation, and refuses all such offers and negotiations, the party renouncing can not complain that the other party does finally accept and act upon the original renunciation. And in such case the original renunciation would be the basis of an action, since, unless waived by the party making it, it is continuous and may be accepted at any time before it is retracted. -3 Amer. & Eng. Encyc. of Law, 904-5-6; Howard v. Daly, 61 N. Y. 375; Frost v. Knight, L. R. 7 Ex. Cases, 111; Nilson v. Morse, 52 Wis. 240; Zuck v. McClure, 98 Pa. St. 541 ; 2 Benj. on Sales, § 860 and notes. MCCLELLAN, J.-On August 30, 1887, the Hull Coal & Coke Company and the Sheffield Furnace Company executed the following writing: "Hull Coal & Coke Company sell to Sheffield Furnace Company, and Sheffield Furnace Company buy from Hull Coal & Coke Company 3,900 cars Flat Top Coke at $5.10 per net ton (2,000 lbs.) f. o. b. cars Sheffield, Ala., provided Hull Coal & Coke Co. are able to induce the operators to build ovens, and make coke for 3,700 cars of the above amount. Sellers agree to furnish 200 cars of the above amount between September 20th and November 1st, 1887. On October ist sellers are to advise buyers how much of the 350 cars they can furnish during the month of November, 1887. On November 1st sellers are to advise buyers how much of the 350 cars they can furnish in the month of December, 1887. December 1st 1887 sellers are to advise buyers how much they can furnish of the 750 cars during the first three months of 1888. February 1st sellers are to advise buyers how much they can furnish of the 750 cars the second three months of 1888. May 1st sellers are to advise buyers how much they can furnish of the 750 cars during the third three months of 1888. August 1st sellers are to advise buyers how much they can furnish of the 750 cars for the last three months of 1888. Deliveries to be made as near as possible proportionately during each period. "These conditions of sale, binding the buyers to take [Sheffield Furnace Co. v. Hull Coal & Coke Co.] the coke as specified above from September 20th, 1887, to December 31st, 1888, giving sellers option of furnishing for said time, are entered into for the purpose of enabling sellers to induce the operators to put up more ovens by promising them a certain sale of the product of these ovens at a fixed price. "The sellers undertake in good faith to use their best endeavors in inducing manufacturers of coke to provide ovens for the purpose of filling this contract. Norfolk & Western Railroad weights at usual point of weighing for these mines to govern. Buyers to remit on or before the 10th day of each month for all shipments made during the preceding month. In case of strikes, accidents, deficient transportation, or other cause unavoidably causing stoppage or partial stoppage of the works of the manufacturer of this coke or of its shipment, or in case of strikes, accidents, or other cause unavoidably causing stoppage or partial stoppage of the works of the buyer, deliveries herein contracted for may be suspended, or partially suspended, as the case may be, or at the option of the party not in default may be immediately cancelled during the continuance of such interruption by immediate notice to that effect given to the other party. Such interruption or cancellation, however, shall not invalidate the remainder of this contract, but on removal of the cause of interruption deliveries shall be continued at the specified rate, and if the delayed deliveries shall not have been cancelled they shall be made thereafter at the regular rate commencing when the contract would otherwise have ended. It is understood that Hull Coal & Coke Company have freight rates to Sheffield, Ala., on which the above price is based, but if during the time this contract is in force this rate should be advanced, then buyers have the option of taking any undelivered portion due on this contract, at the advance, or of cancelling it, provided sellers do not elect to stand said advance." A few days after this instrument was executed, Hull Coal & Coke Company used its "best endeavors in inducing manufacturers of coke to provide ovens for the purpose of filling this contract;" and succeeded. Said company was "able to induce" and did in fact induce operators-manufacturers of coke-to build ovens for the manufacture of 3,700 cars of coke of the kind specified [Sheffield Furnace Co. v. Hull Coal & Coke Co.] in the writing, and this coke was to be manufactured for the company at a price agreed on between it and the producers for the purpose on its part of filling its contract with the defendant corporation. All this was accomplished, the operators induced to build ovens, the ovens built in sufficient numbers and with adequate capacity and sufficient coke actually produced to comply with the terms of the contract in respect of the initial deliveries, before the time at which deliveries were to commence had arrived. Not only so, but Hull Coal & Coke Company, prior to said time, with a view to this contract had engaged and bound itself to take from the said operators, at a price agreed upon, the gross quantity of coke necessary to fill its contract with the Sheffield Furnace Company, and duly notified the latter company of the success of its efforts to induce operators to build sufficient additional ovens to produce the requisite quantity of coke. And on September 30th, 1887, the Hull Coal & Coke Company advised the furnace company in respect of the number of cars of coke it could furnish during the month of November following, to the effect that owing to temporary scarcity of water in the coke fields it would probably be impracticable to deliver 350 cars during November, but this deficiency the coke company proposed to, or suggested it would, anticipate and discount by delivering more than the 200 cars required by the contract in October, asserting its belief that in this way 550 cars-the gross number stipulated for during the period-could be in any event delivered between October 1st and December 1st. At the instance of the furnace company, deliveries were partially suspended after about October 8th and throughout the months of November, December and January, so that up to January 30th, 1888, only sixty-six cars had been delivered. On that day, the following instrument was executed by Hull Coal & Coke Co. and the Sheffield Furnace Company: "This memorandum of an agreement made this 30th of January in the year 1888 by and between the Hull Coal & Coke Company of the first part, and the Sheffield Furnace Company, of the second part, witnesseth: That, whereas, there is a contract now in existence between the parties hereto of date August 30th, 1887, whereby the party of the first part is to deliver to the party of the second part, and the party of |