The defendant agreed to furnish the plaintiff with all the masons’ materials required for the construction of certain houses, which *506included hard brick at the market price, guaranteed not to exceed $9.50 per 1,000, it being understood that the plaintiff would require about 3,000,000 brick to complete the operation, and that “all the hard brick will be received by you [plaintiff] before December 1st, 1905.” I think this was an absolute agreement to deliver all brick required for the construction of the houses irrespective -of time, the defendant, being under ho obligation to deliver all the brick prior to December first, but only such as should.be required for the construction of the houses as the work, proceeded. To protect the defendant, however, the plaintiff was bound to receive the brick before 'December first. This was a provision in the proposal submitted by the defendant and accepted by the plaintiff which was clearly for the benefit of the defendant and a condition which lie could waive by not delivering or tendering the-brick before that time. ' It was not, therefore, as I view it, necessarily a breach of the contract because the defendant neglected to deliver a portion of the brick before December first. By a failure to deliver or tender, the full amount of 3,000,000 brick before December first the defendant waived this provision, the obligation, however, still existing. When, however, the defendant refused to furnish brick after December first except at an increased price, I think there was then a breach of the contract by the defendant which entitled the plaintiff to maintain an action for. the damages sustained thereby; and undoubtedly if such an action had been commenced immediately after December first, the plaintiff would have been entitled to recover the difference between the market value of the brick on December first and the contract'price. The plaintiff* however, was not bound to treat it as a breach- but was entitled to consider the contract as existing and enforce it according to its terms. .1 agree with Mr. Justice Clarke that as on December first' both parties treated the contract as broken it was then the duty of the plaintiff to reduce his damages as much as possible by purchasing the amount of brick that he would require within a -reasonable time and not wait until the- end of January or February when, in consequence of the close of navigation, the price of brick always advanced. The position' of the defendant was unequivocal, it repudiating any obligation to furnish additional brick 'after December first. Plaintiff then knew he would be compelled to procure brick elsewhere *507and had information as to the amount of brick he would require. It seems to me, therefore, that within a reasonable time 'after the defendant’s breach he should have made such a contract or procured the brick from others at the then market price and the defendant would be liable for the difference between the market price at the time plaintiff procured the brick and the contract price which the plaintiff was to pay. ■ >
I, therefore, concur with Mr. Justice Clarke in the conclusion at which he has arrived.
Determination reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as stated in opinion, in which event, judgment as so modified affirmed, without cpsts. Settle order on notice.