I agree with the opinion of Mr. Justice Ingraham upon all the questions discussed, except as to the date of the breach, and from his views upon that subject I dissent. He states in his opinion that “the plaintiff was entitled to have the jury instructed that from the undisputed evidence the breach occurred within two years from the date of the contract.” This is not in accord with my view of. the evidence. The contract was dated January 36, 1895, and,_ in my opinion, the evidence shows that the breach did not occur prior to that time, but, on the contrary, that it occurred as found by the jury, in the year 1896. Upon the trial it was established that from the beginning_ of operations under the contract there were disagreements between the parties thereto, the plaintiff asserting that the defendant did not manufacture the high grade varnishes in the quantity required by the contract, and the defendant claiming that the varnishes when made from plaintiff’s formula were not of the quality represented and did not satisfy the requirements of the trade. In answer to this, the plaintiff in turn alleged, and introduced evidence to support the claim, that whatever imperfections existed in the varnishes were caused by the improper and defective implements furnished for its manufacture by the defendant, and by incompetent and unskillful operators employed by it against plaintiff’s protest. Although this mutual dissatisfaction existed almost from the time the contract was executed, it appears, nevertheless, that until June, 1896, both parties were endeavoring to adjust the difficulties, and the defendant gave no intimation until that time that it would refuse to carry out the contract. That instrument provided that the plaintiff might require the defendant to furnish a monthly report of its operations under the contract, “ to be verified by the oath of one of its officers,” and with this requirement it complied, not only prior to January 36, 1895, but also after that date. In March of the latter year it furnished such a verified report, which stated: “The following is the report of varnish made and sold under our agreement with you;” and to this was appended a detailed statement showing 398 gallons sold for a price exceeding three dollars per gallon, and 1,505 gallons for a price less than three dollars per gallon. On June 13, 1895, a further report was made by the defendant, verified by its treasurer, showing the sale of over 14,000 gallons of varnish, and containing the statement: “ We give below the report for March, April and May, and the same has been placed to the credit of your account.” Other reports were introduced in evidence showing sales under the contract, for the months of June, July, August, September, October and November, 1895; and upon December seventh *868the defendant furnished to the. plaintiff, at his requést, a summary of the amount of "business done during the year under the contract which, showed ,the manufacture and sale of 3;726 gallons of varnish listed at above three dollars-per gallon,'and 23,817 gallons of varnish listed'below three dollars per gallon. Particular attention should be given to the statement by the defendant in this report that it .proposed to live up to the contract strictly. This statement Was made many months after the two-year period, and certainly the plaintiff had the right to rely upon it and to proceed upon the assumption'that "whatever differences, might exist between him and the defendant would be amicably adjusted. Nor can the "defendant complain if the jury accepted as true its written statement that it then regarded the contract as an existing obligation and proposed ■ to carry out its requirements. This situation remained unchanged during the first half of the following year. Further verified reports were furnished by the defendant on January 19, 1¿96, February 13, March 11, April 6, and May 12, all of them containing the statement that during the respective - months the defendant had made and sold from plaintiff’s formula' the amount of varnish specified. On June 12,1896, the defendant, in answer to a letter from the plaintiff, wrote-that it had “fully carried out its contract,” had “ made goods in precise conformity to the formula,”' and had ‘ * energetically pushed their sale, only to find that quantities were thrown back on its hands by purchasers:” This was an assertion of performance, with a reiteration of the original complaint heretofore alluded to, and the letter further indicated that the defendant then considered the contract in force, for it suggested that the plaintiff visit its factory and superintend the manufacture of the varnish. In June, however, according to plaintiff’s testimony, he was requested by the defendant’s treasurer, Andrews, to call upon him, and in that interview Andrews asserted in substance that, while the contract was still in force, he thought it could be broken; and he proposed to attempt to do so, as he did not regard it as an advantageous contract for the defendant to be burdened with.. This, the plaintiff claims, was the . first intimation given to hina-by the defendant that it would repudiate the contract,-and he testified further that at this interview he was told by Andrews that the defendant had not made varnishes from his formula since Andrews came into the premises, which was in April or May, 1895. It was shortly after this that the letter of June 25, 1896; referred' to in the prevailing opinion, was written, which letter contained the statement that the last time the defendant had tried to make goods according to the plaintiff’s formula was under his direct supervision in July, 1894. That assertion, as well as the statement made by Andrews, is, however, directly com tradicted by the fact already alluded to, that up to.May, 1896, the defendant con-. tinued to, furnish monthly verified reports, alleging that it was manufacturing goods under plaintiff’s formula or under this contract. In addition to this, it will be observed that While the May report and those preceeding.it state that the' goods theretofore sold had been manufactured- from plaintiff’s formula, the following report, dated June 12, 1896, recites that the goods sold during the month were made from plaintiff’s formula only “in part.” This evidence, considered together, might well have satisfied the jury, as it apparently did, that up to June, 1896, both parties were performing the contract to the- best of their ability,, but that in the last-mentioned month the defendant changed-its.position,. broke the contract "for the first time, and for the purpose of lessening its damages sought to shift the breach so that it might appear to", be within the two-year period. . Until after Andrew's’ threat' in that month, it continued sending plaintiff its sworn monthly statements, acknowledging its indebtedness to. him under the contract; and the jury were justified in relying upon the verified reports, as well,as upon the other evidence referred to, and in finding that the defendant, until June, was, in good faith, attempting to manufacture and "sell .plaintiff’s -varnishes in the quantity which the trade .demanded, and that the breach occurred in that-month when Andrew's, representing .the defendant, substantially repudiated the contract in the interview with plaintiff, and thereafter wrote the letter pf. June twenty-fifth. If my conclusion in this respect is right, then the plaintiff was entitled to the larger sum, Whiclrbecame due after the expiration of the two-year period; and, the verdict being for this amount, the judgment entered thereon and the order .appealed from should be affirmed, with costs. Laughlin, and Olai'ke, JJ.,' concurred ; Patterson and Ingraham, JJ., dissented. .: