
    Stewart v. Marvel.
    
    
      (Court of Appeals,
    
    
      Filed February 9, 1886.)
    
    Sale—Agreement to deliver iron “as past as mat be produced”— Construction op contract.
    Where defendant agreed to deliver ten car-loads of blooms from iron forge “as fast as they may be produced,” he claiming that, as he had actually delivered all he produced, he could not „be held to deliver more: Meld, that under the contract the blooms must be produced in the ordinary operations of the forge, with reasonable diligence, and with reasonable and proper efforts, and defendant had no right to omit to produce them from mere motives of economy or convenience. Earl, Danforth and French, J.J., dissenting.
    
      W. D. Edmonds, for appellants.
    
      Davit McQlure, for respondent.
    
      
       Affirming 30 Hun, 480, mem.
      
    
   Per Curiam.

On the 14th day of November, 1870, the defendant made a contract with the plaintiffs for the sale to them of iron, of which the following is a copy:

“New York, November, 14, 1879.
Stewart & Co., Easton, Pa.: Sold you to-day ten carloads of (c) blooms, at $55 per ton, 2,240 pounds, del’d on cars at Easton, Pa., say as fast as they may be produced small enough to meet the usual requirements of measure, payable in 30 days from date of bills.
“WM. D. MARVEL.”

Across the face was written: “Accepted. Stewart & Co.” At the date of the contract the defendant was engaged in the production of the iron which he contracted to sell, but shortly thereafter his forge was sold to the Split Rock Forge & Mining Company, which assumed the performance of the contract on his part. Five car-loads of the iron were subsequently delivered to the plaintiffs, and this action was brought by them to recover damages for the non-delivery of the balance' and the real controversy between the parties is as to the proper construction of the contract.

The defendant contends that he was not obliged to deliver the blooms faster than they were actually produced in the operation of his forge, and that, as he delivered all he actually produced, he was not in default. The contract "should receive a reasonable construction, so that, if its language wifi permit, both parties would be bound to perform in the manner which must have been contemplated by them when the contract was made. It could not have been intended that the plaintiffs should be bound to take the blooms whenever tendered by the defendant, and yet he be at liberty to delay the delivery to suit his own convenience or interest indefinitely. It was plainly meant, by the language “as fast as they maybe produced small enough,” that the blooms should be produced in the ordinary operations of the forge, with reasonable diligence, and by reasonable and proper efforts. The defendant had no right to omit to produce them from mere motives of economy or convenience, as he was under obligations to produce them.

The referee found that defendant’s forge had the capacity to produce a car-load of blooms every ten days without interfering in any way with the regular running of the forge, or its other contracts or business; that he delivered the last of the five car-loads on the 28th of January, 1880, and thereafter delivered no more down to the commencement of this action, in May, 1880, and he found that the usual operations and production of the forge were suspended and delayed during the months of February, March, and April, on the gromids of convenience or economy because of the high price of coal; and that, after the 28th of February, the defendant failed, neglected and refused to deliver to the plaintiff any more of the blooms. The evidence £" istified these findings, and they justify the conclusion of w that the defendant was responsible to the plaintiffs for the damages awarded.

Evidence was given by the plaintiffs, against the objection of the defendant, that the defendant stated, at the time the contract was made, that he could produce a car-load of blooms for delivery to the plaintiffs every ten days. We think this evidence and other like evidence was competent for the purpose of showing the capacity of the defendant’s forge, and how fast, by reasonable diligence and efforts, he •could make delivery under his contract.

We have carefully scrutinized other exceptions to rulings upon evidence to which our attention has been called, and do not think any of them require a reversal of the judgment entered upon the report of the referee. The opinion of the referee found in the case is quite satisfactory, and we also refer to that for a fuller statement of the reasons upon which we base our decision. We are therefore of opinion that the order of the G-eneral Term should be reversed, and the judgment entered upon the report of the referee affirmed, with costs..

All concur, except Earl, Danforth, and Finch, J.J., ■dissenting.  