
    Edward F. Milliken and Foster Milliken, Respondents, v. Pauline Keppler and Others, Appellants; J. Maxwell Carrere, as Receiver, etc., of the Carrere & Haas Iron Works, and Others, Respondents.
    
      Contract — what excuses delay■ where its performance is contingent upon strikes and1 boycotts.
    
    Upon the foreclosure of a mechanic’s lien,, it appeared that the owners, of certain. land made a contract with the Carrere & Haas Iron Works, by which the latter agreed to construct by February 1, 1893, a building on'the land and “that the said iron work for this new building shall be finished by them in the specified time, as hereinbefore mentioned, and which item (as to said time) is considered, herein and under this contract a most important feature; but should they fail to complete the job up to aforesaid date, and should it be proven that the delay is caused by the said parties of the second part, then they shall be held responsible and answerable for the loss of the amount of rent caused to the parties of the first part on account of not having the building ready for renting purposes on. the first day of February, 1893, * * * contingent upon strikes (and),boycotts.”
    The work was not finished by February 1, 1893, and the owners set up as a ' counterclaim against the amount claimed to be due under the contract the amount of rent lost through the delay.
    The contractor, the Carrere & Haas Iron Works, had made a general contract with the Columbia Iron and Steel Company in March, 1892, to furnish such material as was required by this contract, and on July 7, 1892, the day when the contract in question was signed, the president of the Carrere & Haas Iron • Works wrote the Columbia Company, notifying it and directing the forwarding of material; and a day or so later learned that the men of thq Columbia. Company were hot at work, but took no steps to place the order elsewhere, the- vice-president and manager of the Columbia Company having promised ' that this contract should take precedence over all others, and that company expecting every day that a settlement of the strike would be reached. It was the year of the Homestead strike, and all orders for similar iron work at that time were considerably delayed; There was also evidence tending to show that the mason was tardy in his work, and that the acts of the owners constituted a waiver of the delay.
    .Held,, that the counterclaim should not be sustained;
    That while the duty rested upon the Carrere & Haas Iron Works to perform the contract if possible; and it could not excuse itself by the mere fact of having ordered material from a striking factory, still the “strikes ” specified in the last clause of the contract were not such only as might occur among its own ' employees, and it would be entitled to exemption from liability under this, clause if, in the exercise of reasonable care and diligence, it was prevented from performing by strikes in other localities.
    
      Appeal by the defendants, Pauline Keppler, ITdo Keppler, Louis C. Raegener and Edward C. Stieglitz, as. executors and trustees-under the last will and testament of Joseph Kepp’er, deceased, Adolph Schwarzmann and William Ottmann and Louis Ottmann, as trustees of the estate of Jacob Ottmann, deceased, from a judgment of the Court of Common Pleas for the city and county of New York, entered in the office of the clerk of said court on the 31st day of December, 1895, upon the decision of the court rendered after a trial at an Equity Term thereof.
    The appellants, the owners of certain land on the northwest corner of Mulberry and Jersey streets in the city of New York,-on July 7, 1892, made a contract with the Carrere & Haas Iron Works, whereby the latter agreed to erect and finish a building on such land in accordance with certain 2>lans and specifications, furnishing the iron and all other necessary materials mentioned in the iron specifications. The work was to be done February 1, 1893. The seventh clause of the contract reads as follows: “ The parties of the second part herein (Carrere & Haas Iron Works) agree with the parties of the first part that the said iron work for this new building shall be finished by them in the specified time as hereinbefore mentioned, and which item (as to said time) is considered herein and under this contract a most important feature; but should they fail to complete the job up to aforesaid date, and should it be proven that the delay is caused by the said parties of the second part, then they shall be held responsible and answerable for the loss of the amount of rent caused to the parties of the first part on account of not having the building ready for renting purposes, by the first day of February, 1893.” Between the words “In witness whereof,” etc., and the signatures of the parties to the contract were inserted the words, “ Contingent upon strikes, boycotts and delays unavoidable.” The last three words were stricken out before execution, leaving the contract contingent only upon strikes and boy-'cotts. The work was .not finished by February 1, 1893, and the' appellants in an action brought by sub-contractors as lienors to enforce against the property the amount of their claim set up a counterclaim for loss of rent.
    • The plaintiffs and all |>arties other than the appellants, and the receiver of the Carrere & Haas Iron Works, which has applied for a voluntary dissolution, are sub-contractors who have filed liens against the property. ■ A stipulation was entered into by'all parties fixing the amount still due the iron works and the lienors under the ■contract and for extra work, without prejudice to the counterclaim ■of the owners. It disposes of all questions except the validity of this counterclaim, which was- dismissed by the trial court.
    
      Louis C. Raegener and Thomas M. Rowlette, for the appellants.
    
      R. M. Martin, for the defendants, lienors, respondents.
    
      L. Sidney Carrere, for the defendant, receiver, respondent.
    
      Luke A. Lockwood, for the plaintiffs, respondents.
   Barrett, J.:

The question whether or not the trial court erred in dismissing the counterclaim of the appellants is one of mixed law and fact.' It will be well to consider first the construction to be given to the ■contract. The performance of the contract was made contingent ■upon strikes and boycotts. The appellants claim that the strikes referred to were only such as might occur in the shops of the contractor. We see no reason for thus limiting the words. The •obvious intent in inserting the clause was to protect the contractor from liability for delays which it could not help, so far as they .should be due to strikes. There is no reason to believe that any .strike which had a legitimate tendency to retard the contractor was not meant to be covered by the expression in the contract. It does not,- however, follow from this that the contractor was at liberty to •order material from a striking factory, and then rely upon this clause for its protection. A duty rested upon it to perform the contract if possible, and to exercise care^ diligence and skill to this end. All that was obtained was immunity from the general' "rule of law which refuses to accept inevitable and unforeseen accidents as an ■excuse for the non-performance of an absolute' agreement. (Harmony v. Bingham, 12 N. Y. 99.)

The- facts are that the contractor made a contract with the Columhia Iron and Steel Company in March, 1892, providing generally for the furnishing of material of the sort required later in performing this contract; that on July seventh, the day when the contract under consideration was signed,, the president of the -Oarrere Works: wrote the Columbia Company notifying it, and directing the forwarding of material; and that he learned a day or so. later that the Columbia Company’s men were not at work, but took no immediate steps to place the order elsewhere. He testifies: “ Previous to the signing of the contract with the Puck people, on July 7th, we had received bids, or tried to receive bids, from other concerns, and there was no concern that I would have liked to have entrusted that work with at that time, outside of one, which were so busy that I did not think it advisable to go to them, especially as I had the promise from the vice-president and the manager of this mill that if the contract were given to them it would take precedence over all others.” It also appears that this was the year of the great Homestead strike, and that the beam manufacturers were having a good deal of difficulty in supplying orders. Milliken, who had been engaged in the business of iron construction for fifteen years, testified that it took anywhere from six to eight weeks in August and September to fill an order, on account of the demand during the summer months. But the precedence which had been promised to the Oarrere Works resulted in a delivery within two weeks from the time the works of the Columbia Company started up. IVIilliken’s estimate was probably conservative for this particular year. He was .asked : “ Were you delivering continuously at that time ? ” (August, September and October, 1892) and he replied: “ Ho, we were not delivering continuously, * * * Some of our orders we were back, three months on.” It also appeared by the evidence of the secretary of the Columbia Company that not until the end of July or the beginning of August was the situation at the works regarded as serious. The company’s contract with the labor association had expired June thirtieth^ at which, time the men quit work, but negotiations as to wages were pending and it was expected day by day that a settlement would be reached. All of this evidence was practically uncontradicted. The fair inference from it is, that the contractor was justified in the belief that it would get just as prompt and satisfactory attention by leaving the-order where it was originally placed as by attempting to place it elsewhere. It follows that the contractor, while exercising reasonable. prudence and diligence in executing its contracts, was prevented by “ strikes.” The only substantial claim of failure to perform was the delay in the delivery of the beams, and for this the contractor was not liable under a fair interpretation of the contract.

The view we. have taken renders it unnecessary to discuss the testimony in detail, or to consider at length the other question presented by counsel. Our conclusion,' however, is that the delay in furnishing the beams caused by the strike was immaterial in view of the tardiness of the. mason, and that the acts of the appellants constituted a waiver of the delay. Our judgment might well rest upon these grounds, quite independent of the view we have taken of the strike clause. We have also examined the record as to .the minor details of the woik, notably the mullions, lintels and" shutter-eyes, and we think that the decided weight of. evidence favors the view that the contractor was not in default in any of these matters.

The judgment should be affirmed, with costs.

Van Beunt, P. J., Ruhsey, O’Brien and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  