
    Hecla Iron Works, Respondent, v. Edward F. Milliken and Others, Appellants.
    (No. 2.)
    
      Order for iron work—what provision therein is not an absolute limitation on its weight.
    
    An order for constructional and ornamental iron work which provides, We wish it understood that the weight of the material is to be kept down as much as possible for all work that is not ‘ constructional.’ We understand you will furnish said work 1-4" thick, except for the wash of the cornice, which will be 8-8" thick,” is not to be treated as an absolute limitation on the weight of the ornamental iron work, especially where a subsequent provision of the order requires the vendor to submit to the vendees the “drawings and templets before executing the work in order for us to pass on the thickness of the metal.”
    
    Appeal by the defendants, Edward F. Millikén 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-21st day of June, 1898, upon the decision of the court rendered after a trial at the New York Special Term.
    This appeal was transferred from the first department to the second department.
    
      John L. Hill, for the appellants.
    
      Nathaniel S. Smith, for the respondent.
   Hirschberg, J.:

This case is presented in about sixty pages of printed briefs without the citation of an authority. It presents a mere question of fact, which the learned trial justice decided in favor of the ¡plaintiff,. and it cannot be said that he 'did so without evidence to support his conclusion.

The defendants Milliken, having a contract to construct the Siegel-Oooper building in Manhattan, gave the plaintiff’s assignors an order to furnish and erect, at four and sixty-five-one-hundredths cents per pound, the cast iron piece for support of the sidewalk where the brickwork occurs, and the cast iron front work for the Eighteenth and Nineteenth street sides of the building below the cornice line, to include the panel work, the mullions, the ornamentation on the columns and the caps for the columns, the ornamental part of the cast iron columns at the .show-window fronts, and also the entire cast iron cornice at the second tier level all around the building.

In the order the Millilcens stated, to quote the language: “ As we have explained to you, we wish the drawings and full size details of the architects followed. In buying this work by the pound, we wish it understood that the weight of the maferial is to be kept down as much- as possible for all work that is not 6 constructional.’ We understand yon will furnish said work 1-é" thick, except for the wash of the cornice, which will be 3-8,/ thick.” And again : “We understand that you will submit us your drawings and templets before executing the work in order for ns to pass on the thickness of the metal.” The shipping directions marked on the order are Siegel-Cooper building, Eighteenth and Nineteenth streets and Sixth avenue, New York city. The order is dated August 31, 1895. The plaintiff’s assignors did the work, malting and erecting all the castings and shipping them to the building in forty odd shipments, commencing in the middle of -October, 1895, and ending the latter part of May, 1896. They charged for 218,148 pounds of iron, and there is no reason to doubt they furnished it. But the defendants Milliken claim that, if it had all been made just one-quarter of an inch thick, excepting the wash of the cornice, and the latter just three-eighths of an inch thick, the weight would only have been 164,953 pounds; and their liability for the difference at the agreed price was the question chiefly contested on the trial.

The limitation as to thickness relates, I think, solely to ornamental work, and it is impossible to determine from the record just how much of the work was ornamental and how much “ constructional,” that is, burden-bearing. But I do not think there is any absolute agreement to keep the ornamental work down to the one-quarter-inch and three-eighths-inch thicknesses. The work is to be as light as possible for all work that is not ‘ constructional,’ ” with the designated. thicknesses as a standard rather than as the maximum. This view is supported by the subsequent provision in the order made to enable the Millikens, by an inspection of the drawings, etc.; to pass on the thickness of the metal before.the execution of the work. If this does not mean that there was some discretion to be exercised as to the thickness it is difficult to define its purpose. Certainly, there would be no need of the provision if the metal was to be precisely a quarter-inch thick everywhere but in the cornice, and three-eighths there. Mr. Foster Milliken, the defendant in charge, was invited to come to the shop and examine the work, patterns, etc., either during the progress of the work or before it was commenced, but he did not go. The defendants, however, had the weight of the work on each shipping bill, and Mr. Milliken was at the building all the time, examined all the material, knew perfectly well its weight and thickness and allowed it all to be used in the building without any really serious objection. He undoubtedly did find some fault at the start, but the amount of objection and the extent to which he was satisfied by explanation depend upon whether lie is believed or the foreman of the plaintiff’s, assignors.

Under all the circumstances the learned trial justice was entitled to conclude that there was no fraudulent overweight, certainly nothing which necessarily indicated a deliberate excess for the purpose of swindling; and while it is quite likely that some of the castings would have answered the purpose if made lighter, and might have been made lighter if greater skill had been exercised and more trouble taken, yet, as the work was done to the satisfaction of the owners and architects, and was all done and performed as charged for, I recommend affirmance.

All concurred.

Judgment affirmed, with costs.  