On or.about the 3d day of April, 1894, the-parties to this action entered into a contract in' writing whereby the plaintiff undertook *84to deliver to the defendants, under the direction of their engineer, about 60,000 granite paving blocks of a given description, at the rate of $82.50 per 1,000. These blocks were to be delivered “ either in New York or Brooklyn, as directed by the engineer,” and the deliveries were to “ commence within six weeks after the date of . the contract, the rate of delivery being subject to the order of ' the engineer.” The contract further, provided, “ It is understood and agreed that if at any time the contractor shall, fail to comply with the terms ■ of • these specifications, and if, in the judgment of the engineer, he is manifestly unable to furnish the blocks as required, then the trustées may declare his contract null and void, and shall have the right to contract with other parties for the delivery of the blocks; and if loss occur to the trustees' by this.transaction, said contractor shall pay such loss, or it shall be deducted from any money due him under this contract.” The evidence tended to establish that, immediately after the signing of this contract, the. plaintiff entered upon the work of getting out the paving blocks in accordance with the specifications, and that within one month it had succeeded in placing about 20,000 of these blocks upon its docks ready for shipment, and that this number had been increased to about 40,000 blocks on the thirtieth day of May. There was evidence tending to establish the' fact that the plaintiff, through one of its representatives, had called upon the engineer of the defendants within the six weeks specified in the contract,, and had offered to begin the delivery of such blocks by requesting that the engineer of the defendants should designate where such blocks were to be delivered, and.that the engineer had promised to do so, but. that he never in fact complied with this request.. Subsequent to this request, and after the expiration of the six weeks ■ from the signing of the contract, the engineer of the defendants sent an inspector to the quarries of the plaintiff, at its request, to inspect the paving blocks, some 40,000 in number, and the evidence showed that the inspector looked over the blocks, and to several persons declared them to be of good quality — the best, or the equal, of any that he had ever seen. The inspector made a report to the engineer of the defendants, the nature of which does not clearly appear from the evidence, and, acting solely upon this report, as the engineer testifies, he advised the defendants to annul *85the contract on the grounds that “ they had failed to comply with their contract in not delivering the stone at the time specified, and that I was convinced in my judgment that they were not * * * in condition or competent to fulfill their contract.” The contract was annulled by the defendants and the contract for the paving blocks was let to the next lowest bidder, by whom the blocks were delivered, the defendants paying $95 per 1,000 for the same. The plaintiff disposed of the blocks on hand at a considerable discount, the market for this particular kind of paving block being very dull; and this action was brought for the purpose of recovering the difference between the amount realized and the sum that the defendants had agreed to pay, together with the loss incident to the refusal of .the defendants to accept the remaining 20,000 blocks, not yet manufactured. The questions involved were submitted to the jury under a charge on the part of the trial court to which there were no important exceptions, and resulted in a verdict for the plaintiff for the full amount of its claim. The defendants put in a counterclaim for the amount of the loss growing out of the difference in price between the contract with the plaintiff and that which they were obliged to pay, and this is still urged by the defendants. ,
We are unable to discover any reason why this judgment should not be sustained. The jury has found by its verdict that the plaintiff was prepared to deliver a reasonable quantity of these paving blocks within the six weeks allowed by the contract for the commencement of the delivery; that the defendants were notified of this fact, and that the engineer, by neglecting or refusing to designate the point of delivery, had waived the right of the defendants to take any advantage of the question of time so long as the engineer did not order deliveries. This conclusion is justified by reason and is sustained by the authorities. (West v. Newton, 1 Duer, 277 ; Mayor, etc., of New York v. Reilly, 59 Hun, 501; Deeves v. The Mayor, etc., 44 N. Y. St. Repr. 218.) The only material question, then, is whether or not the question of the plaintiff’s ability to deliver the stone was one for the jury, or was that power left by the contract exclusively with the engineer of the defendants ? Unquestionably the defendants’ engineer was, by the terms .of the contract, made the judge of the ability of the plaintiff to furnish the blocks as *86.required,, but this does not, as we understand the law, authorize the engineer to reach this conclusion arbitrarily, nor does it deprive the jury of the right to say whether he had any sufficient justification for the conclusion. The trial court, upon this point, charged the jury “ not that the judgment of the engineer may be due to some caprice or some whim, but he must have information upon which to. base his judgment that the contractor is manifestly unable, or was manifestly unable, to complete the contract and to furnish the blocks as required.” This, we believe, fairly stated the law, and the jury have found that the engineer did not have the information necessary to determine that the plaintiff was “ manifestly unable to furnish the blocks as' required.” So far as appears from the evidence, the plaintiff had a' large quantity of cut stone meeting the requirements of the contract; the defendants, though made aware of this fact, had never designated any point of delivery, as required by their contract, and there was no fact which justified the engineer in concluding that' the plaintiff was “ manifestly unable * * to furnish the blocks as required,” unless that fact was communicated by the person whom he had designated to make an inspection ; and, so far as the evidence throws any light upon this question, the facts, disclosed were not sufficient to justify the conclusion which the engineer is said to have reached, and' it was clearly within the province of the jury to reach the verdict now under review. In order to make manifest that the plaintiff was “ unable * * * to furnish the blocks as required,” it would seem to be important that the defendants, through their engineer,'should have required the delivery of- the blocks, or a certain portion of them, at some given point.- If. there had been any failure to meet this demand, either in the number or the quality, there would be a reasonable ground on which to declare the contract void, and it was undoubtedly contemplated that some such condition should arise before such action should be taken. This is the-fair and reasonable construction of the contract, taken as a whole.
The judgment and order of the trial court should be affirmed, with costs. • •
All concurred.-
Judgment and order affirmed, with costs.