
    Joseph Rosenthal, Respondent, v. The Empire Brick and Supply Company, Appellant.
    (Supreme Court, Appellate
    June, 1907.)
    Sales — Interpretation and evidence of contract — Quantity of goods sold — Provision as to time of delivery.
    Damages—Particular contracts and relations — Contracts for sale or purchase of goods — Breach by seller.
    Where defendant, a brick company, agreed to furnish plaintiff, a builder, all the mason’s materials required in the construction of seven houses, at stated prices, and it was provided that all hard brick should be received by plaintiff before December 1st,. 1905, the defendant was bound to supply bricks sufficient to complete the buildings at the contract price without regard to December 1st, such date'being important only as fixing the time by which plaintiff was required to receive them if defendant delivered them; ^and where, upon defendant’s failure to furnish all of them required to complete the buildings, plaintiff was compelled to, go into the open market and purchase the remainder, he was entitled to recover as damages the difference between the contract price and what he paid in excess thereof, and was not limited to the difference between the contract price and the market price on the first day of December.
    Appeal by the defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiff, and from an order denying defendant’s motion for a new trial.
    Benjamin E. Edsall (Isaac L. Miller, of counsel), for appellant.
    Walter J. Rosenstein, for respondent.
   Per Curiam.

The plaintiff, a builder, sued the defendant, brick company for damages for breach of contract. The contract arose on the proposal of defendant and the plaintiff’s acceptance. In substance it was, as far as material: “We propose to furnish you all the mason’s materials required for the construction of seven houses on the south side of 34th Street one hundred feet west of Amsterdam Avenue this City, all to be delivered at the following prices and conditions. Hard brick at the market price guaranteed not to exceed $9.50 per thousand, it being understood that you will require about three million to complete the operation and that all the hard brick will be received by you before December 1st 1905.” Plaintiff, in the construction of his buildings, received dose to 2,000,000 of brick. Toward the end of November, plaintiff in writing demanded of defendant sufficient brick to complete his buildings stating that, if defendant was not ready to deliver that quantity at that time, he expected them to deliver brick after December first at contract price of nine dollars and fifty cents per 1,000. Defendant replied that he would be treated properly. On December first there were required to finish the buildings about 300,000' brick. Defendant’s representative told plaintiff that, if they furnished him any more brick after December first, he would have to sign a new contract to pay eleven dollars .per 1,000. Plaintiff refused. After that date, defendant furnished to plaintiff 54,000' brick, for which he had to pay eleven dollars per 1,000. Plaintiff, in order to complete his buildings, had to go into the open market and purchase 243,000 brick at thirteen dollars per 1,000. He sued defendant for three dollars and fifty cents per 1,000 for the 243,000', being the difference between nine dollars and fifty cents, the contract price, and thirteen dollars, which he had to pay, and recovered a verdict for $850.50. The defendant claimed that it was ready to deliver all of the brick necessary to complete the buildings, before December first, but plaintiff refused to accept. This and many other questions of fact were submitted to the jury, and their verdict resolved them in favor of the plaintiff. It was proven that the price of brick in the open market, at the time that plaintiff purchased the 243,000, was thirteen dollars per 1,000.-The principal contention arose over the construction of the contract, defendant claiming that the breach occurred on December first, and that damages should be measured by the difference between the contract price and the market price at that time, and plaintiff claiming that defendant was bound to supply him with sufficient brick to complete the buildings at nine dollars and fifty cents without regard to December first; that that date was important only as fixing the time by which the plaintiff was required to receive them if defendant delivered them; that, defendant not' having delivered them, plaintiff had to go into the open market and purchase what was necessary to complete the buildings and that the rule of damages was the difference between the contract price and what he paid. We think the plaintiff’s construction the correct one. There was nothing ambiguous or uncertain about this language: “We propose to furnish you all the mason’s materials required for the construction of seven houses * * * all to be delivered at the following prices * * *. Hard brick * * * guaranteed not to exceed $9.50 per thousand.” The hard brick was to be received by December first, but it could not be received if defendant did not furnish it. All questions of fact were submitted to the jury and the defendant’s contention that there were errors of law is based on his mistaken theory of the case.

The judgment should be affirmed, with costs.

Present: Gildersleeve, Fitzgerald and Goff, JJ.

Judgment affirmed, with costs.  