
    James Park, Jr., et al., App’lts, v. The Chateaugay Iron Company, Resp’t.
    
      (Supreme Court, General Term, Third, Department,
    
    
      Filed May 19, 1887.)
    
    1. Contract—Construction—Within what time to be performed.
    By the terms of a certain contract the defendant company agreed to deliver to the plain tiffs 3,000 tons of iron in Pittsburg during the “spring and summer ” of 1880. JMd, the said company was not in default for not delivering the iron until the 1st of September, 1880. That in the ahsence of an express provision in the contract requiring frequent or continuous delivery, the whole 2,000 tons could have been delivered on the last day of the summer.
    3. Same—Damages—Evidence—How restricted.
    
      Held, that the evidence as to the amount of damages must be directed to the difference in value of the iron at the contract-price on the 1st of September, 1880, and the actual market value at that time.
    3. Same—Evidence—What competent.
    It was competent for either party to put in evidence the value of iron of the description called for in the contract at or about the time of the breach by the defendant. t
    
    Appeal from an order denying a motion for a new trial made upon the minutes of the court.
    The action was to recover damages alleged to have been sustained by an alleged breach of contract by the defendant in failing to deliver to plaintiff at Pittsburg, Pa., 2,000 tons of iron in accordance with the terms of such alleged contract. The contract, claimed to have been broken, was by letters and telegrams between the parties.
    By an agreement by letter concluded on the 16th day of September, 1879, the defendant contracted to sell and deliver to the plaintiff at Pittsburg, during the spring and summer of 1880, 1,00<"> tons of a quality of iron, described therein, at the rate of sixty dollars per ton, and by another agreement, in like manner, by letter and telegram, concluded on the 30th day of September, 1879, another like amount of a similar kind of iron for sixty-five dollars per ton, to be delivered at Pittsburg,-Pa., during the spring and summer of 1880. The substance of the contracts was-on that day contained in a letter from defendant to plaintiff in the following language:
    “ Plattsburg, N. Y., September 30, 1879.
    “Messrs. Park Bros. & Co.:
    “ Gentlemen—Your favor of twenty-seventh at hand. Your order for Chateaugay billets are entered at follows l 1,000 tons at sixty dollars per ton, 2,240 pounds; 1,000 tons at sixty-five dolllars per ton, 2,240 pounds; delivered in Pittsburg next spring and summer. Terms cash.
    “Yours respectfully,
    “ CHATEAUGAY IRON COMPANY.
    “A. Williams, President.
    
    “P. S. This covers all orders received from you to date by letters or wire.”
    The defendant delivered to the plaintiff after the making of this contract about 371f tons at five different invoices: November 29, 1879, 10 tons; April 21, 1880, 50 tons; June 20, 1880, 53 tons; July 16, 1880, 143 tons, and September 18, 1880, 114 tons. All of which was paid for at delivery except the invoice for September, 1880, amounting to $6,288.09, which remains unpaid.
    The plaintiff in the complaint alleges the making of the contract and its breach, and claims damages.
    The answer substantially admits the making of the contract, but alleges that the time for the delivery of the iron was extended by mutual agreement between the parties, and that the defendant delivered iron under said contract in September, 1880, which was not paid for at the timé and has not at the time of the commencement of this action been paid for, and that the defendant was, therefore, exonerated from any liability for the further delivery of iron under said contract.
    The jury rendered a verdict for the plaintiff for $2,194.11'.
    
      Maxwell, Barnard & Wheeler, for app’lt; Matthew Hale, for resp’t.
   Mayham, J.

The defendant was not in default for not delivering iron under this contract until the first of September, 1880. By the terms of the contract the defendant was to deliver in the spring and summer of 1880, and having delivered in both those seasons, in the absence of any provision in the contract fixing the amount to be delivered at any one time, it would have been a complete performance within express terms of the contract if on the last day of the summer the defendant had delivered the remaining 161J tons not delivered; the whole amount called for by the contract would then have been delivered during the spring and summer of 1880, and the contract therefore would have been literally performed.

It may be true, as claimed by the plaintiff, that they wanted and needed this iron supplied, as they desired to use the same to keep their works in operation, and it may also he true that the defendant was apprised of that fact, but in the absence of an express provision in the contract requiring frequent or continuous delivery that imposed no legal duty or obligation upon the defendant.

If this conclusion is correct, then the fact that the plaintiffs were unable to obtain a sufficient supply of iron to carry on their business in the spring and summer of 1880, was not a matter to be considered in this action, and the question put to tne witness Park on that subject was properly excluded. The defendant had, as has been seen, until and including the last day of the summer, to complete the delivery, and the contract was not therefore broken until the end of the summer; and we think the learned justice al the trial was right in holding that evidence at the trial must be directed to the difference in value of the iron at the agreed or contract price on the first of September, and the actual market value at that time. That could be arrived at by evidence either of the actual market value, as shown by- sales at that time, or by the evidence of witnesses acquainted with the market value, based upon their knowledge of sales at that time or within such reasonable time before and after that as bore more or less directly upon the value at that time. It was competent therefore for either party estimating or determining the difference in value to put in evidence by competent witnesses the value of iron of this description at or about the time of the breach by the defendant, and this method was adopted by both parties.

The plaintiff proved by Park the purchases made by him in September, October and November. This evidence was offered for the double purpose of showing the actual market value of this iron on the first of September, and also for the purpose of fixing the actual damage by showing how much the plaintiff in fact suffered by reason of the failure of the* defendant to perform his contract, and we think the evidence competent on both grounds.

The defendant proved also by Weed & Williams, sales of iron about the same time, for the purpose of fortifying their opinions as to the market value of iron of this description.

These witnesses were clearly competent to speak of the market value of iron, and in determining their competency the inquiries as to their dealings in iron of this quality were competent as bearing upon that question. They did not constitute objectionable acts and declarations of parties in their own favor such as would authorize their exclusion for that reason. The evidence being competent, it was not error to refuse to strike it out on the plaintiff’s motion.

Nor do we think the court erred in refusing to direct a verdict for the plaintiff for a specific amount claimed by him. The difference in the market value of iron on the first of September was one of the disputed questions of fact litigated on the trial, and one that could not properly be taken from the jury. Both parties introduced evidence on that subject, and the witnesses of the respective parties differed in their conclusions as to the value at that time. And for the court to have determined that conflict would, we think, have been a clear invasion of the prerogative of the jury and error.

There was no valid exception to the charge of the judge, and we think that as a whole it was a correct exposition of the law of the case and a full and fair submission of the questions of fact to the jury.

For reasons heretofore stated upon the questions of law discussed, we think the judge was right' in denying the motion for a new trial upon the minutes.

The verdict was not upon its face unsupported by the evidence.

The jury were authorized and required to deduct from the amount of the plaintiff’s damage as proved by the evidence and found'by them, the unpaid balance of $6,288.09 for the invoice of iron delivered in September, and with that deducted, the court could not, under the evidence, say that the verdict was wholly unsupported by the evidence.

Much less that it was against the evidence. On the whole case we do not see any valid reason for the reversal of the order appealed from.

The order must be affirmed, with costs.

Learned P. J., concurs.  