
    Seaboard Brick Company, Respondent, v. Dominick Bonacci and Moses Vincelli, Composing the Firm of Bonacci-Vincelli Contracting Company, and The American Bonding Company of Baltimore, Appellants, Impleaded with The City of New York, Defendant.
    First Department,
    November 8, 1912.
    Sale — materials furnished to municipal contractor:— refusal of municipal authorities, to allow material to be used — waiver of counterclaim . based upon seller’s failure to furnish proper material—measure of damages.
    Where after the partial execution of a contract whereby the plaintiff agreed to furnish brick to a municipal contractor, and after the municipal authorities refused to permit any more of the plaintiff’s brick to be used, the contractor informed the plaintiff that it would buy brick from other persons and never demanded that the plaintiff make its brick conform to the specifications of the municipal contract, and never made demand for any loss on account of having to pay a higher price for the brick subsequently used, it waived any counterclaim founded upon the plaintiff’s agreement to furnish the brick needed for the performance of the contract. This, because the defendant’s action prevented the plaintiff from endeavoring to provide brick acceptable to the municipal authorities, which it might have done. ,
    Where the defendant bought other brick without competition, without notice to the plaintiff, and without ascertaining whether it could purchase brick cheaper, the price paid is not the measure of damages recoverable on said counterclaim.
    Appeal by the defendants, Dominick Bonacci and another, composing the firm of Bonacci-Vincelli Contracting Company and another, 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 10th day of November, 1911, upon the decision of the court rendered after a trial at the New York ■ Special Term. ■
    
      Martin T. Manton, for the appellants.
    
      Martin A. Ryan, for the respondent.
   Scott, J.:

The question raised by this appeal relates to the disallowance by the trial court of defendants’ counterclaim.

The -defendants had a contract with the city of New York, executed on September 14,1908, for laying vitrified brick gutters in certain streets in the borough of Richmond. On August 12, 1908, plaintiff' wrote to defendants a letter reading as follows:

“New York, August 12th, 1908.
‘ ‘ Bonacci-Vincelli Contracting Company,
“ $ 672 Degraw Street, Brooklyn, N. Y.:
“ Terms: Freight Net Cash $3.00 per M. on delivery of brick 2% off for cash 10 days or cash on balance on the City Engineers estimate or measurement.
“ Truly yours,
“SEABOARD BRICK COMPANY,
“ SCHOONMAKER & RICE,
“per Arthur Conners, Mgr.”

This proposition the defendants accepted in the following terms:

“We hereby accept above offer for furnishing Vitrified Shale Paving Block to be used by us on contracts # 6, 7 and 8 in the Borough of Richmond, S. I., on terms and conditions above stated.
‘‘ BONACCI-VINCELLI CONTRACTING CO.
“By Dominick Bonacci.”

Under this agreement plaintiff furnished 2,713.10 square yards of brick, which were accepted and used, and it is for their price that this action is brought. In November, 1908, the city’s engineers refused to permit the use of any more of plaintiff’s brick, whereupon defendants purchased from another source the balance of the brick required at a price in excess, by $1,532, of the amount the plaintiff would have been entitled to receive for the same quantity of brick. For this excess the defendants counterclaim as for damages for the breach of the contract. The trial court dismissed the counterclaim upon the ground that the contract above quoted did not bind the plaintiff to deliver or the defendants to receive any particular quantity of brick, or all the brick, to be used under the contract, but amounted to nothing more than an agree-. ment fixing the price to he paid for so much brick as might he delivered and received. We are not agreed as to whether or not this is á correct construction of the contract although it is plain that it differs substantially from the contract construed in Miller v. Leo (35 App. Div. 589), upon which defendants greatly rely. It is not necessary, however, to construe the contract because we are of the opinion that the defendants expressly waived the default, if default there was, on the part of plaintiff. The court found that, while the question of the acceptance of plaintiff’s brick by the city’s engineers was still pending, defendants informed the plaintiff, through John D.

■ Schoonmaker and Jacob Bice, that they could get all the brick they .wanted that would 'pass the city’s test at the same price as plaintiff had agreed to sell to them, and that if plaintiff could not get the city to accept the cargo of 125, 000 brick it then had at Staten Island, to let them know and they would order other brick; that the plaintiff sent bills to the defendants for the brick supplied and accepted by the city, and thereafter requested payment of the same, and the defendants never disputed the bill; that the defendants informed the plaintiff, through Jacob Bice, that if the lien had not been filed the defendants would have paid plaintiff’s bill for said brick so supplied and used; that the defendants never made a demand on plaintiff after plaintiff’s letter of November 12, 1908, to furnish them with brick under the contract of August 12, 1908, and never made a demand, prior to filing their answer to this cause, for any loss on account of having to pay more for the brick to complete their contracts with the city than that stated in plaintiff’s letter of August 12, 1908; that the said defendants purchased the balance of the brick required to complete the said three contracts with the city of New York, amounting to 10,942.92 square yards, through one Willard without ascertaining what was the market price of similar brick or whether they could purchase the brick elsewhere cheaper.

These findings are amply supported. by the evidence, and in our opinion they indicate either that defendants construed the contract as it has been construed by the trial court, or that they waived any claim to hold the plaintiff to an agreement to supply the brick needed. .In either' case the effect of the defendants’ acts was to mislead plaintiff into supposing that defendants did not intend to hold it, and thus prevented plaintiff from making an effort to provide other brick acceptable to the city’s engineers, as, very possibly, it could have done. Furthermore, the price the defendants actually paid for the brick without competition and without notice to plaintiff did not measure the damages recoverable. There was no evidence of the fair and reasonable value of the brick purchased after plaintiff had ceased delivering.

For these reasons,- without passing upon the construction of the contract, we think that the judgment should be affirmed, with costs.

Ingraham, P. J., Laughlin, Miller and Dowling, JJ., concurred.

Judgment affirmed, with costs.  