The material portion of the contract in this case reads: "Mr. Ready agrees to furnish, and the J.L. Fulton Company agrees to buy not less than five thousand and no more than eight thousand cubic yards of stone from Ready's quarries at Oil City at a price of $3.40 *Page 406 per cubic yard, f.o.b. cars Buffalo, W.N.Y. and P.R.R. delivery; and the stone to include all such stone as may be required for face stone, bridge seats, coping and backing. If more than five thousand yards are required, three weeks notice is to be given for the extra amount."
The word "required" in this contract is ambiguous, standing alone, and was fully explained by both parties at the trial.
It is alleged in the complaint that the defendant was engaged in constructing stone work for the Terminal Railway of Buffalo, which required a large quantity of stone. This allegation is admitted in the answer and on the trial the defendant's counsel said: "I admit that the defendant used more than eight thousand yards of the kind of stone mentioned in the contract, and used them in the masonry of the Terminal Railway of Buffalo." (p. 48 of record.)
This record clearly discloses that the stress of the trial was on questions of fact. The plaintiff claimed that he had delivered 2,668 cubic yards of stone under the contract and that the defendant wrongfully refused to receive further deliveries. The defendant claimed in substance that the stone delivered was defective in quality and not quarried in the manner provided by the contract. These questions of fact were bitterly contested, the jury found for the plaintiff and the Appellate Division unanimously affirmed the judgment entered on the verdict.
It seems to me impossible, on reading the evidence, to reach any other conclusion than that the word "required" in the contract referred to the work on the Terminal Railway of Buffalo; that more than eight thousand cubic yards of stone, of the kind mentioned in the contract, were required in the prosecution of that work, and that defendant's refusal to proceed under the contract was for the reasons already stated.
The effect of the admission above quoted was to render unimportant the ruling of the trial judge, as a question of law, that the contract on its face was for the sale of eight thousand cubic yards of stone. More than eight thousand cubic yards were required for the work contemplated by both *Page 407 parties when they entered into this contract, and that portion thereof which was originally conditional became operative by reason of this fact and the stipulation conceding it.
The verdict of the jury for $5,977.40 was very favorable to the defendant under the circumstances. The sum of $3.249.13 thereof was for stone actually delivered, and the balance of $2,728.27, the amount of plaintiff's damages for stone undelivered, being one dollar per cubic yard, as testified to by him, only exceeds five thousand cubic yards by 396.27 cubic yards.
It is true that the amount of one dollar per cubic yard as plaintiff's profit, lost by defendant's refusal to accept further deliveries, was established by his own testimony. As there was no conflict as to the amount of his loss of profits, assuming that the defendant was bound to have accepted further deliveries, and there were no circumstances from which an inference against the fact testified to could be drawn, this court has held that the plaintiff's case, resting on his own evidence, does not require submission to the jury. (Kelly v. Burroughs, 102 N.Y. 93.)
In that case Judge DANFORTH said: "The mere fact that the plaintiff, who testified to important particulars, was interested, was unimportant, in view of the fact that there was no conflict in the evidence, or any thing or circumstance from which an inference against the fact testified to by him could be drawn."
It seems to me a great hardship that this plaintiff should be compelled to go down to another trial when the defendant stands before the court convicted of a breach of its contract and liable to respond in such damages as the plaintiff has sustained.
I vote for affirmance.
CULLEN, Ch. J., O'BRIEN, HAIGHT, VANN and WERNER, JJ., concur with MARTIN, J.; BARTLETT, J., reads dissenting opinion.
Judgment reversed, etc. *Page 408