
    LEFURGY v. STEWART et al.
    (Supreme Court, General Term, Second Department.
    May 8, 1893.)
    1. Contract of Sale—Payment.
    Plaintiff’s decedent offered to furnish stone to defendant at certain, prices. Subsequently a contract was made, including two of the several kinds mentioned in the bid, but omitting the others. Decedent charged higher prices for the stone so omitted than those named in the bid, and on an entirely different basis. Defendant complained of the prices, but gave no intimation that he considered them fixed by agreement. He also testified that no prices had been fixed on the stone except as to the two kinds mentioned in the contract The stone furnished was of unusual dimensions, and unusually difficult to quarry. Held, that the prices stated in the bid for such stone were not binding.
    S. Same—Reasonable Value—Evidence.
    Although not binding, they should, however, be adopted as the fair and reasonable value of stone coming precisely within the bid, but as to stone not coming within the bid the prices named in the bills rendered should be adopted.
    Appeal from judgment on report of referee.
    Action by Mary L. Lefurgy, as administratrix of William G-. Lefurgy, deceased, against James Stewart and George Stewart. Judgment entered for plaintiff on referee’s report. Defendants appeal.
    Affirmed.
    The opinion of George 0. Holt, Esq., referee, is as follows:
    This action is brought to recover a balance of a bill for stone sold and delivered by the plaintiff’s testator to the defendants. William G. Lefurgy, the original plaintiff, owned a stone quarry at Hastings, in Westchester county. The defendants were builders, doing business at Yonkers. Prior to February 5, 1887, William Rockefeller proposed to build a stone house at Tarrytown, and arranged with the defendants to build it. The defendants applied to several quarry owners for bids on stone, and, among others, to Lefurgy; and on or about February 5, 1887, Lefurgy delivered to the defendants a paper, a copy of which is as follows.
    “Stone Delivered in Rough.
    “February 5, 1887.
    Ashlar in rough delivered..................................... § 20 ft.
    Coin “ “ ..................................... 1 10 each.
    Water table “ .................................... 40 run. ft.
    Corner ashlar “ ..................................... 50 ft. cu.
    Window sills and lintels, 6 inches thick and 10 inches bed..... 45 run. ft.
    Ringstone.................................................... 35 per ft.
    “You can take the above price as positive.
    “Wm. Lefurgy.”
    “Mr. Stewart—Dear Sir: I do not care about taking the cutting of the stone at all, but will deliver and cut ashlar for 45 cents per foot, water table for $1.00 per foot, window sills for $1.45 per running foot. On other stones I would like to see specifications first. (Over.)”
    On March 28, 1887, Lefurgy wrote a letter to defendants, and on the same day the defendants wrote a letter to Lefurgy, inclosing a copy of the Lefurgy letter, copies of which are as follows:
    
      “Yonkers, March 28, 1887.
    “Messrs. J. & G. Stewart, Yonkers—Gentlemen: I hereby agree to sell and deliver to you on William Rockefeller’s dock at Tarrytown such building stone from my quarry for broken ashlar as you may require at twenty cents per foot, face measure; the stone to be cut at .quarry at your expense, and the stone to be measured at quarry; I to furnish room for cutting stone free of expense. Also stone for water table, 8 inches high, 8 inches bed, at thirty cents per lineal foot, on same conditions as mentioned for ashlar. Payment for the same to be made by you as the work progresses, ten per cent, of cost to be reserved till final payment and completion of this contract.
    “Wm. G. Lefurgy.”
    “Office of J. & G. Stewart, Masons and Builders, Cor. Warburton and Wells Aves.
    “Yonkers, March 28, 1887.
    “William G. Lefurgy, Hastings—Dear Sir: We inclose the copy of the agreement you made with us to-day for stone from your quarry.
    “Yours, very truly, J. & G. Stewart. G.”
    Thereafter Lefurgy sold and delivered to the defendants large quantities of stone, some of which was of the kinds described in the letters constituting the contract of March 28th, and some of which was of the kinds described in the paper of February 5th, and not described in the contract of March 28th. The defendants made payments from time to time upon account of such stone. This action was brought to recover the balance alleged to be due for such stone. The complaint contains three causes of action: First, a claim for the stone delivered for the Rockefeller house, of the kinds described in the contract of March 28th, at the price named in said contract; second, a claim for all other kinds of stone delivered for the Rockefeller house on a quantum meruit; third, a claim for certain stone sold and delivered for another house, known as the “Fitch House,” on a quantum meruit. The defendants admitted upon the trial the first and third causes of action. They admitted that all the stone named in the bill of particulars was delivered. The substantial controversy in the case is as to the amount to be paid for the stone referred to in the second cause of action; that is, the stone for the Rockefeller house, of kinds not mentioned in the contract of March 28th. In respect to this stone the defendants claim—First, that its price is governed by the paper dated February 5th; and, second, that, if not so governed, the prices charged by the plaintiff in the bill of particulars for such stone are unreasonable; and that, if the prices named in the paper of February 5th, or reasonable prices only, are allowed, the plaintiff has already been fully paid.
    The first question, therefore, in the case is, what effect is to be given to the paper dated February 5th? The plaintiff’s counsel claims that this bid or offer was never accepted by the defendants, nor made the subject of a contract. There is no specific evidence that it was. The defendants’ counsel claims that the defendants, by ordering stone from the plaintiff of the kinds mentioned in the paper of February 5th, and not mentioned in the contract of March 28th, accepted the terms stated in the paper of February 5th.
    Fifth. Ordinarily, undoubtedly, if Mr. Stewart had asked Mr. Lefurgy for a list of prices for his stone, and Mr. Lefurgy had- given such a list, and Mr. Stewart had thereupon ordered the stone, and there were no other circumstances to be taken into consideration in the case, it would be fair inference that the prices given bound both parties. But in this case neither party seems to have paid any attention to the paper of February 5th, until it was discovered in the middle of the trial. The contract of March 28th says nothing about any of the kinds of stone mentioned in the paper of Febniary 5th, except broken ashlar and water table., It omits to make any provision whatever in relation to corner ashlar, window sills, lintels, or ring-stones, all of which were necessary in the construction of the Rockefeller house. From the very beginning of the work the defendants ordered and Lefnrgy delivered comer ashlar, lintels, sills, ringstones, and stones ordered of special dimensions, called “dimension stone.” From time to time Lefurgy rendered to the defendants bills fully itemized, and containing numerous items of stone of the kind specified in the paper of February 5th, and not specified in the contract of March 28th, for which he charged prices on an entirely different basis, and at a higher rate, than the prices named in the paper of February 5th. The defendants, from time to time, said to Lefurgy that his prices were high, but there is no evidence that they ever specified any particular objection to any particular item, or that they ever claimed that the bills were erroneous because they contained charges differing from the prices named in the paper of February 5th. No intimation is contained in the answer to the second cause of action that the prices for the stone not included in the contract of March 28th were fixed by a previous agreement. The substantial issue raised by the answer to the second cause of action is whether the prices charged were reasonable. Mr. Stewart himself testified in the ease, a short time before the session at which the paper dated February 5, 1887, was produced, that at the time he made the contract with Lefurgy of March 28th, it was understood that the entire stone was to be furnished by Lefurgy for the Rockefeller house, but that no prices were stated' or put upon anything except as to the prices of the two kinds of stone mentioned in the contract of March 28th. Mr. Getty, the defendants’ bookkeeper, testifies that he never knew of the existence of the paper of February 5th until about a week before it was offered in evidence. After the session at which the paper dated February 5, 1887, was put in evidence, and before the next session of the reference was held, Mr. Lefurgy died, without ever having had an opportunity to give any explanation about the paper dated February 5, 1887.
    Under these circumstances, I think that the paper dated February 5th cannot be regarded as a contract between the parties, and that the parties were not bound, in a strict legal sense, by the prices stated in that paper. The legal inference from the fact that in the contract of March 28th certain kinds of stone mentioned in the pap'er of February 5th were omitted is, in my opinion, that the parties, for some reason, preferred not to make any binding contract in respect to stone of the kinds not mentioned in the contract of March 28th. But, although the paper of February 5th is not, in my opinion, a binding contract between the parties, I think it is entitled to great weight on the question of the fair and reasonable value of the stone mentioned in it. These figures were given by Mr. Lefurgy himself as the figures at which he was at that time ready to enter into a contract in respect to the Rockefeller house. Less than two months later he entered into a contract in reference to two kinds of stone mentioned in the paper of February 5th to be used for that house, the price for one of them being less in the contract than the price stated in the paper of February 5th.
    Considerable testimony has been offered on both sides on the question of reasonable value. The defendants’ witnesses give as reasonable prices for the stone mentioned in the second cause of action figures which are substantially similar to the figures given by Lefurgy in the bid of February 5th. The plaintiff’s witnesses put these figures much higher, particularly in respect to dimension stone. This house of Mr. Rockefeller’s was to be an unusually large and handsome one. Much of the stone that was required in building it was required in unusual haste, and of unusual and specific dimensions. An objection also was taken to the delivery by Lefurgy of any stone containing white streaks of a certain size. The evidence shows that there was a good deal of stone in Lefurgy’s quarry that had white streaks in it; that stone with such streaks was just as good as stone without them; that, indeed, some persons regarded such stone as more ornamental than stone which did not have such streaks; but that Mr. Rockefeller, or his architect, rejected stone with such streaks, and this caused a rejection of a good deal of stone which Mr. Lefurgy had quarried, and made it more laborious for him to get out the kind of stone ordered free from such streaks. Perhaps it was in view of these facts that the parties did not fix a price in the contract for such stones as lintels, sills, and ringstones, which have to be of certain dimensions, or for dimension stone of any Mnd. At all events, I think that much weight is to be given to the evidence in this case in respect to the unusual difficult}' and expense of getting out the dimension stones furnished by Mr. Lefurgy. I think, too, that much weight should be given to the fact that Mr. Lefurgy rendered itemized bills to the defendants from time to time, and that the defendants made no objections to them, except a general objection that the prices were high. Lefurgy had made no binding contract to furnish stone except of the kinds mentioned in the contract of March 28th. The defendants ordered other stones, and Lefurgy furnished them as ordered. He sent in bills, charging for them at prices stated on the bills. The defendants said the prices were high, but they went on ordering more stone from him of the same kind. The defendants after a while got into a controversy with Mr. Rockefeller about their own bills, and could not collect their pay from him during a certain period, and they put off paying Lefurgy during that period, stating, in substance, as one ground for doing so-, that they were themselves short of money. Taking all these circumstances into consideration, I think that a just rule governing prices in this case will be to adopt the prices- fixed in the bid of February 5th in respect to the stone delivered by the plaintiff, which came precisely within the terms of that bid, and to adopt the prices named in the bills rendered in respect to stone which did not come within the terms of that bid.
    The defendants’ counsel has put in evidence a computation by which he claims to have computed the prices for the stone included in the second cause of action on the basis of the bid of February 5th. He makes up first a list of stone which he calls “Ashlar,” (Exhibit -2 of November 10, 1891,) putting down the prices charged in the bill, and then the prices for the same stone computed at fifty cents a cubic foot. This list called “Ashlar” seems to- in-elude simply dimension stone. I understand that the theory on which this is done is that dimension stone is substantially the same as comer ashlar, the price for which named in the bid was fifty cents a cubic foot. But I do not think that they are sufficiently similar to be necessarily charged at the same price. Comer ashlar is stone proper to be used at the comer of a building. The various dimension stones in this building were of various sizes. Some of them were unusually large, and I do not think they were intended to be known as, or were substantially similar to, the stone described as “comer ashlar” in the bid of February 5th. ALL the stone, therefore, described in that list, I think should be paid for at the prices charged in the bills rendered.
    The second list of stone, which the defendants’ counsel has subjected to the same method of computation, is a fist of ringstones, (Exhibit 3 of November 10, 1891.) Three of the items in this list—one for four stones, charged in the bill at $8.00, being the seventh item from the foot of the first page of the exhibit; another item of six stones for .$36, being the last item upon said page; and another item for $8.00, being the last item upon the second part of said exhibit—do not appear to me to be proved to have been ring-stones. The other stones in this list were proved to have been ringstones, and I think that the prices named for ringstones in the bid of February 5th, to wit, 35 cents per foot, is a fair and reasonable price to allow for said stones. The total overcharge for ringstones, according to the computation in Exhibit 3, is $2,244.97. By deducting the overcharge on the three items, wldch I think are not proved to have been ringstones, which is $37.24, we have left the sum of $2,207.73 to be deducted for overcharge on ringstones.
    The third list of stone, wliich the defendants’ counsel has subjected to the same method of computation, is a list of sills and lintels, (Exhibit 4, of November 10, 1891.) In the bid of February 5th, window sills and lintels six inches thick and ten inches- deep were offered at 45 cents per running foot. Many of the sills and lintels furnished for the Rockefeller house were of different dimensions. In my opinion, for those sills and lintels which were of sulistantially the size described in the bid of February 5th, the price stated in that bid should be allowed, but for the sills and lintels which were of a substantially different size the amounts charged in the bills rendered should be allowed. The following items, stated in the list of sills and lintels, (defendants’ Exhibit 4, November 10, 1891,) are, in my opinion, sills and lintels of substantially the size mentioned in the bid of February 5th:
    Amount Charged Prices According
    Items. in Bill of Particulars. to Bid.
    1st........... ........$169 00
    4th........... ....... 143 10
    6th........... ........ 39 00........... ....... 29 25
    9th.......... ........ 252 00........... ....... 189 00
    11th......... ........ 88 00........... ....... 19 80
    13th........... ........ 88 40........... '....... 28 80
    15th ......... ....... 23 85
    18th........... ....... 23 85
    23d........... ....... 22 95
    25th........... ....... 20 70
    Second page. 3d........... ....... 8 10
    $966 20 $679 05
    The other items in this list are, in my opinion, sills or lintels of a substantially different kind and size from those referred to in the bid of February 5th, for which the prices charged in the bills rendered should be allowed. The difference, therefore, between the above sums of $966.20 and $679.05. being $257.15, is the amount which should be deducted from the plaintiff’s claim for overcharge on sills and lintels. The account between the parties, therefore, may be stated as follows:
    The balance claimed by the plaintiff on the Rockefeller account is $3,821 60
    And on the Fitch account is.....................:................. 698 50
    Making a total of.............................................$4,520 10
    From this should be deducted overcharge for ringstones.. $2,207 73
    Overcharge for sills and lintels......................... 287 15
    - 2,494 88
    Leaving a balance due of .....................................$2,025 22
    My conclusion, therefore, is that the plaintiff is entitled to judgment against the defendants for $2,025.22, with interest thereon from December 14, 1883, and the costs and disbursements of this action.
    Argued before BARNARD, P. J., and DYKMANT and PRATT, JJ.
    Joseph F. Daly, for appellant.
    Leavitt, Wood & Keith, (John Brooks Leavitt, of counsel,) for resnondent.
   DYKMAiT, J.

This is an appeal from a judgment entered upon the report of a referee in favor of the plaintiff. The action is for the recovery of stone delivered to the defendants, and the principal controversy had reference to the prices of the stone. A careful examination satisfies us that the referee has made a proper disposition of the case, and his opinion shows that he examined the case with great care.

The judgment should he affirmed, with costs.  