
    Vaughn Machine Company, Respondent, v. Edward A. Quintard and Others, Appellants.
    
      Contract to furnish articles to a third person— liability of the party agreeing to pay for them—direction as to the articles to be furnished, — excuse for non-perform-once where performance is pleaded — evidence of declarations and of inconsistent statements.
    
    Under a contract by which the party oí the first part thereto agrees to furnish machinery and install a plant for a company (nod a party to the contract), and to accept in payment the company’s notes guaranteed by the parties of the second part, and which further provides that if such notes are not given, the-parties of the second part “ hereby agree to become liable and pay the amount due to said party of the first part upon the above-named contract,” the parties-of the second part are, in the event of a failure to give the guaranteed notes, primarily liable upon their direct covenant to pay, and not merely as guarantors of the company.
    Where one oí the items to be supplied under such a contract is one “vacuum pan, size and description to be furnished,” and it appears that the contract was. to be performed for the benefit of the company, and that it provided that such other materials were to be furnished as were called for by its general manager, the vendor, the party of the first part, should look to the company and not to ■ the parties of the second part to the contract for the size and description of.' the vacuum pan.
    
      Where it appears that the vacuum pan contemplated by the contract did not. exceed two feet in diameter, and that the company refused to accept a vacuum pan of less than six feet in diameter, the vendor is excused from performance-in regard to this item.
    When a plaintiff who has pleaded full performance of a contract is allowed without objection to give evidence excusing such performance, it is too late on an appeal from a judgment in his favor to claim that the testimony was not within, the issue.
    Declarations by the general manager of the company, to which the machinery-was furnished, as to what the company called for under the contract and what, it refused to accept thereunder, are admissible upon the question of performance, as well as to show an excuse for non-performance.
    
      Semble, that it is improper to offer testimony as to the statements of a witness contradicting the testimony given by him where his attention has not been called to them, and he has had no opportunity of explanation.
    Appeal by the defendants, Edward A. Quintará and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of May, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of May, 1898, denying the defendants’ motion for a new trial made upon the minutes.
    
      Robert A. B. Dayton, for the appellants.
    
      N. T. M. Melliss, for the respondent.
   Barrett, J.:

This action was to recover the reasonable value of certain machinery furnished by the plaintiff to a company known as the Climax Quick Tanning Company under a contract between the plaintiff and the present- defendants, to which the Climax Company was not a party. The contract recites, first, that the Climax Company is the owner of a certain process for the tanning of hides, skins and pelts, which process is protected by letters patent, and that it is desirous of having erected in the city of New York a complete plant to be operated under said letters patent; second, that the parties of the second part (the present defendants) desire that the Vaughn Machine Company (this plaintiff), party of the first part, shall erect and install and complete, ready for operation, in a building in the immediate vicinity of New York city, a full and complete plant for the tanning of such hides, skins and pelts. Then follows a specification of the machinery of which such plant is to consist. 'The only item of this machinery to which we need now refer is 1 vacuum pan, size and description to be furnished.” The main •question in dispute hinges upon this single item. It is conceded that the plaintiff delivered the other specified items to the Climax Company, and the only question upon the trial with regard thereto was as to their reasonable value. The principal questions litigated below and presented here relate to the performance of the contract. 'The appellants contend that they were sureties for the Climax Company"; that the contract was altered in a material respect by the plaintiff and that company without their consent, and that; even if it was not so altered, the plaintiff failed to perform what the contract •called for.

In the view we take of this case, it is immaterial whether the defendants‘were principals or sureties. The machinery was to be furnished to the Climax Company. That included a vacuum pan of a “ size and description to be furnished.” This plainly indicated that such size and description were to be furnished by the Climax 'Company. Following the recitals to which we have referred, the contract reads that the Vaughn Machine Company agrees to furnish the specified machinery and install the plant for the Climax Quick Tanning Company, and also to furnish such other materials in its line “ that may be necéssary, as called for by John U. Carruthers, general manager of the company. It is clear, therefore, that the plaintiff was to look to the Climax Company, and not to these -defendants for the size and description of the vacuum pan which it was to furnish under the contract. No alteration of the contract with regard td this vacuum pan was shown. It is averred in the •complaint, and admitted by not denying, in the answer, that the ■Climax Company proposed to the plaintiff such an alteration, and that the latter agreed thereto, but only upon a proviso which was never fulfilled. The entire “ fourth ” paragraph of the complaint is thus admitted. It is there alleged that after the execution of the contract, the Climax Company requested the plaintiff to procure^ in lieu of the vacuum pan ordina/rily used in tcmneries and the kind contemplated by the terms of said contract cmd •therein mentioned, the cost of which would not have exceeded the sum of $500, a vacuum pan of an entirely different kind, the cost of which would be about $5,500; that the plaintiff agreed to this provided the Climax Company would procure a further agreement from these defendants to become liable for its payment; that the Climax Company failed to procure such further agreement from these defendants, and that the plaintiff accordingly refused to supply the $5,500 vacuum pan. This was but a conditional modification of the original contract, and the latter remained throughout in full force and effect. The proposed modification never reached the point of finality, and when the plaintiff in the 5th paragraph of its complaint avers performance in accordance with the terms of said agreement so modified as aforesaid,” it plainly refers to this conditional and incomplete modification. The plaintiff required not only the consent of the defendants to the proposed modification, but their absolute agreement to pay the price of the more expensive vacuum pan. It follows, therefore, that even if these defendants were but sureties, their contract has not been affected, nor were they released from its liability.

There was, however, no trace of a guaranty in the covenant to pay the amount due the plaintiff, upon default in the procurement of the Climax Company’s notes. The total amount to be paid for the machinery was not to exceed $12,000, and the plaintiff agreed to accept in payment the Climax Company’s notes. The defendants agreed that the notes should be given within ten days from the time of the completion of the work, and, when so given, to guarantee their payment. If not so given, however, “ in default thereof,” to quote the words of the contract, they “ hereby agree to become liable and pay the amount due to said party of the fim'st pa/rt (the plaintiff) upon the above-named contract.” Notes hot having been given as thus called for, the defendants became primarily liable upon this direct covenant to pay.

We agree with the appellants that, as the contract was not modified, the plaintiff was bound to perform it in all particulars. It was consequently bound to deliver one vacuum pan, size and description to be furnished by the Climax Company. It is conceded that it did not do this, and the defendants thereupon make their last point — namely, that they are not liable for the reason that the plaintiff failed fully to perform. The answer to this contention is, first, that the Climax Company furnished the size and description of an entirely different vacuum pan from that concededly contemplated by the contract ■—■ a vacuum pan such as the plaintiff had never agreed to deliver, and which it was only willing to deliver in case the defendants were willing to bind themselves for its payment; and, second, that the Climax Company absolutely refused to accept such a vacuum pan as the defendants admit was contemplated by the contract.

The contract was made on the 15th day of August, 1896, and on the twenty-fifth day of the next month the Climax Company, by the defendant Carruthers as its general manager, wrote to the plaintiff a letter in which it stated that it would not, under any circumstances,, accept a vacuum pan smaller than six feet in diameter. This referred to the $5,500 pan which had been the subject of the proposed modification. The proof was undisputed that the pan contemplated by the contract would not have exceeded two feet in diameter. It was certainly a much smaller and cheaper pan than that referred to in the letter. The plaintiff, therefore, was excused from performance with regard to the specific item in question. It is true that it pleaded full performance, and not an excuse for partial non-performance; but the case was tried upon the latter issue and the testimony upon the subject was put in without objection. The defendants cannot now be permitted to make the point that this testimony was not within the issues. Had they made the point below, the trial court would undoubtedly have' permitted an amendment. Having tried the case without complaint or objection upon the question whether the plaintiff, under the circumstances, was excused from delivering the particular vaccum pan referred to in the contract, .they are bound by the result.

The exceptions taken by the defendants to the learned trial justice’s rulings are unsubstantial. The defendants Quintard, Wall and Brown objected to certain declarations of Carruthers, upon the ground that, although jointly liable with him, they were not his partners. These declarations, however, were not made by him as a joint covenantor with his co-defendants, but as the general manager of the Climax Company. They would have been admissible if made by a general manager of the Climax Company who was an entire stranger to the contract. The contract, as we have seen, was to be performed for the benefit of the Climax Company, and the machinery delivered to it. What that company called for under the contract was admissible to show performance, and what it refused to accept was equally admissible to show an excuse for non-performance. Upon either head, the declarations of its general manager were admissible.

For the same reason, the submission to the jury of the question whether Carruthers represented the defendants was of no moment. They were bound by his declarations only in the sense to which we have referred ; and he did not attempt to bind them in any other manner.

There is nothing in the exceptions as to the measure of damages, and the criticism upon the learned judge’s language on that head is quite hypercritical. The question of the reasonable value of the machinery actually furnished under the contract was fairly submitted to the jury in language which they could not have misunderstood, and which was substantially correct.

The only other exception calling for consideration was to the refusal to admit evidence of a conversation had by Carruthers with the plaintiff’s president, several months before the contract was executed, in which the company’s price at that time for one of the machines in question was mentioned. The evidence was excluded upon an erroneous ground. It was, however, properly excluded. It was offered avowedly to contradict the witness George C. Vaughn, who was the plaintiff’s president. After referring to the fact that this latter witness had testified upon the subject of value, the defendants’ counsel stated that he was seeking to prove, by Carruthers, statements “ in contradiction of that.” These statements had not been called to the attention of Vaughn upon his examination, and it was not proper to contradict his testimony on that head without giving him an opportunity of explanation. Then, too, the conversation related to but a single item, as to which two witnesses for the plaintiff had given independent evidence of reasonable value, while the defendants gave no evidence upon the subject of the reasonable value of this particular item. If offered, therefore, as an original declaration, the fact was too remote and trivial to affect the result.

The judgment and order denying the defendants’ motion for a new trial should, therefore, be affirmed, with costs.

Van Brunt, P. J., Rumsey, Ingraham and McLaughlin, JJ., concurred.

Judgment and order affirmed, with costs.  