
    Suplian Sampica, Resp’t, v. John Hurd et al., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February, 1888.)
    
    Contract—Substantial performance of.
    The plaintiff cut, drew and piled a quantity of wood under a contract with the defendants which specified the length and thickness into which the wood should be cut and split, and the manner in which it should be piled. The wood was to be inspected by the defendants, and that portion not found to conform to the contract to be rejected. It was agreed after inspection and some difference of opinion, that twenty per cent should be rejected and payment was made for the remainder. The rejected wood was afterward sold by the defendant. This action was brought to recover compensation for cutting, drawing and piling the rejected wood, and it was claimed by the plaintiff uponthe trial, that at the time the deduction was agreed to, the defendants also agreed to pay for the rejected wood if they sold or concluded to take it. This was denied by the defendants who claimed that the deduction was final without any contingent further liability to the plaintiff. Feld, that it was inferrible from the evidence that the theory upon which the defendants rejected the wood which did not i conform to the contract was that they could not dispose of it to their customers, and that having been able to find a market for it, they were liable to the plaintiff.
    Appeal from a judgment in favor of the plaintiff entered ¡ in Franklin county upon the report of a referee.
    
      L. B. Bunnell, for app’lts ; Thomas Cantwell, for resp’t.
   Landon, P. J.

Plaintiff cut, drew and piled a quantity I of wood for the defendants, under a contract with them which specified the length and thickness into which the wood should be cut and split, and the manner in which it should be piled; the wood to be inspected by the defendants, and the portion thereof found, upon inspection, not conforming to the contract to be rejected. Upon inspection plaintiff was dissatisfied with the amount defendants proposed to reject and not pay for. It was finally agreed that twenty per cent, of the entire quantity should be rejected. The defendants then paid the plaintiff for the entire, amount, less twenty per cent., and took his receipt in full for all demands up to date. The amount rejected was 106.35 cords.

The plaintiff’s contention ■ on the trial was that it was a part of the agreement between him and the defendants at the time the twenty per cent deduction was agreed to, that if the defendants sold or concluded to take the rejected wood they would pay him for it. This the defendants denied, and claimed that the twenty per cent deduction was final without any contingent further liability to the plaintiff. The defendants afterwards did take and sell the rejected wood.

The referee found that the plaintiff was entitled to recover the contract price for it. We think this finding is amply sustained by the evidence. The theory upon which the defendants rejected the wood, which did not conform to the contract, was, that their customers would not take it. It obviously would make a material difference whether the inspector was content with a substantial compliance with the terms of the contract, or exacted strict compliance. In agreeing upon a twenty per cent rejection and a contingent further payment, both parties were safe; the defendants would pay for no more than they could market, and the plaintiff would get pay for all they could market, and the result would be that the market inspection would be accepted by both as the fair inspection.

We make these remarks because the defendants’ counsel insists that the defendants, as business men, would not make such a foolish bargain as the referee has found they ■did.

We have examined the exceptions taken by the defendants and find none which would justify a reversal.

Judgment affirmed, with costs.

Fish and Parker, JJ., concur.  