
    Edward F. Milliken, Resp't, v. Pauline Keppler et al., App'lts.
    
      (Supreme Court, Appellate Divison, First Department,
    
    
      Filed April 17, 1896.)
    
    1. Contract—Building—Construction.
    Where the performance of a contract is made ' contingent upon strikes and boycotts, it includes any strike which has a legitimate tendency to retard the contractor, whether occurring in his shops or elsewhere.
    2. Same.
    But, under such contract, the contractor is not at liberty to order material from a striking factory and then rely upon this provision for his protection.
    Appeal from a judgment dismissing a counterclaim.
    The appellants, the owners of certain land on the nortwest corner of Mulberry and Jersey streets, in the city of New York, on ■July 7, 1892, made a contract with the defendant-respondent the Carrere & Haas Iron Works whereby the latter agreed to erect and finish a building thereupon in accordance with certain plans •and specifications, furnishing the iron and all other necessary" materials specified in the iron specications. The work was to be 'done February 1,1893. The seventh clause of the contract read as follows: “The parties of the second part herein (Carrere & Haas Iron Works) agree with the parties of the first part that the said iron work for this new building shall be finished by them in the specified time as hereinbefore mentioned, and which item (as to said time) is considered herein and under this contract a most important feature; but should they fail to complete the job up to aforesaid ■date, and it should be proven that the delay is caused by the said parties of the second part, then they shall be held responsible and answerable, for the loss of the amount of rent caused to the parties of the first part on account of not having the building ready for .renting purposes by the first day of February, 1893.” Between the words, “In witness whereof,’ etc., and the signatures of the parties to the contract, were inserted the words, “Contingent upon strikes, boycotts, and delays unavoidable.” The last three words were stricken out before execution, leaving the contract contingent only upon strikes and boycotts. The work was not finished by February 1, 1893, and the appellants set up a counterlaim for loss •of rent. The plaintiffs and all parties other than the appellants, and the Carrere & Haas Iron Works and its receiver, are subcontractors who have filed liens against the property: A stipulation was entered into by all parties fixing the amount still due the iron works and the lienors under the contract, and for extra work. This stipulation is without prejudice to the counterclaim of the ■owners It disposes of all .questions except the validity of this counterclaim, which was dismissed by the trial court.
    Louis C. Raegener, for appellants; R. M. Martin, for respondent lienors; L. Sidney Carrere, for respondent receiver; Luke A. Lookwood, for plaintiffs respondents.
   BARTLETT, J.

The questionwhether or not the trial court erred in dismissing the counterclaim of the appellants is one of mixed law and fact. It will be well to consider first the construction to be given to the contract. The performance or the contract was made contingent upon strikes and boycotts. The appellants claim that the strikes referred to were only such as might occcur in the shops of the contractor. We see no reason for thus limiting the words. The obvious intent in inserting the clause was to protect the contractor from liability of delays which it could not help, so far as-they should be due to strikes. There is no reason to believe that any strike which had a legitimate tendency to retard the contractor was not meant to be covered by the expression in the contract. It does not, however, follow from this that the contractor was at liberty to order material from a striking factory and then rely upon the clause for its protection. A duty rested upon it to perform the contract if possible, and to exercise care, diligence and skill to this end. All that was obtained was immunity from the general rule of law which refuses to accept inevitable and unforseen accidentas an excuse for the nonperformance of an absolute agreement. Harmony v. Bingham, 12 N. Y. 99.

The facts are that the contractor made a contract with the Columbia Iron & Steel Company in March, 1892, providing generally for the furnishing of material of the sort required later in performing this contract; that on July 7th, the day when the contract was signed, the president of the Carr ere Works wrote the Columbia Company notifying it, and directing the forwarding of material; and that he learned a day or so later that the Columbia Company’s men were not at work, but took no immediate steps to place the-order elsewhere. He testifies:

“Previous to the signing of -the contract w’i-th the Puck people, on July 7th, we received bids, or tried to receive bids, from other concerns; and there was no concern that I would have liked to-have intrusted that work with at that time, outside of one, which were so busy that I did not think it advisable to go to them, especially as I had the promise of the vice -president and the manager of this mill that, if the contract were given to them, it would take precedence over all others.”

It also that this was the of the Homestead strike, and that the beam manufacturers were having a good deaf of difficulty in supplying orders. Mil liken, who had been engaged in the business of iron construction for fifteen years, testified that, it took anywhere from six to eight weeks in August and September to fill an order, on account of the demand during the summer months.. But the precedence which had been promised to the Carrere Works resulted in a delivery within two weeks from the time the works of the Columbia Company started up. Milliken’s estimate was probably conservative for this particular year. He was asked: “Were you delivering continuously at that time (August, September, and October, 1892)?” and he replied: “No. We were not delivering continuously. Some of our orders we were back three months on.” It also appeared by the evidence of the secretary of the Columbia Company that not until the end of July or the beginning of August was the situation at the works regarded as serious. The company’s contract with the labor association had expired June 30th, at, which time the men quit work; but negotiations as to wages were pending, and it was expected day by day that a settlement might be reached. All of this evidence was practically uncontradicted. The fair inference from it is that the contractor was justified in the belief that it would get justas good and prompt attention by leaving the order where it was originally placed as by attempting to place it elsewhera It follows that the contractor, while exercising reasonable prudence and diligence in executing its eontract, was prevented by “strikes.’’ The substantial claim of failure to perform was the delay in the delivery of the beams, and in this the contractor was not liable, under a fair interpretation of the contract

The view we have taken renders it unnecessary to discuss the testimony in detaill, or to consider at length the other question presented by counsel. Our conclusion, however, is that the delay caused by the strike in furnishing the beams was immaterial, in view of the tardiness of the mason, and that the acts of the appellants constituted a waiver of the delay. Our judgment might well rest upon these grounds, quite independent of the view we have taken of the strike clause. We have also examined the record as to the minor details of the work, notably the mullions, lintels, and shutter eyes; and we think that the decided weight of evidence favors the view that the contractor was not in default in any of these matters.

The judgment should be affirmed, with costs.

All concur.  