In my judgment the plaintiff is entitled to succeed. It sued for furnishing and driving certain piles, each one of which bore its own number. The defendant stipulated that the plaintiff should recover for all save twenty-three, and the trial court decided that the plaintiff should not recover for such piles, although they were furnished and driven, but, as held, they were not driven as far into the ground as the contract contemplated. In other words, it was decided that they were not “ driven until not more than ten blows cf a No. 2 vulcan steam hammer are required to secure 1 inch penetration.” The difference between the parties is fundamental. The contention of the defendant is that, although the piles were driven their whole length, and, however much below the surface, the plaintiff cannot be paid for any pile provided finally it does not meet the test to which I have just called attention. That is, the defendant’s contention is, that if a pile was driven out of sight, and in the process it did not take ten blows of the hammer to send it one inch, the plaintiff cannot recover. When the case was here before, there was nothing to show whether, when a pile had been driven its whole length into the ground, there was any way of driving it farther, but now, as I understand, it is admitted that, when it is down its full length, all has been done that can be, whether it comes up to what is called the test or not. All the twenty-three piles now in dispute were driven, each its full length into the ground, and the man who was the defend*526ant’s superintendent so testified. I do not understand that there is any contention to the contrary by the parties. The real question is, as I think, whether the plaintiff agreed to deliver and drive piles of selected lengths, and the question is fully answered by referring to the contract, which is in the form of a letter by the plaintiff to the defendant, on which is indorsed an acceptance. The defendant had undertaken to furnish the material and labor for building a chapel in Greenwood Cemetery, and his agreement required that he should secure a foundation by the use of piles known as “ Raymond Concrete Steel Piles,” and the defendant stipulated with Warren & Wetmore, the other party concerned in the contract: “ 3. The piles shall be driven to refusal with a Ho. 2 Vulcan Steam Hammer, refusal being understood for the purpose of this specification to mean that the piles shall not penetrate more than 1" under the last 16 blows of the hammer.” The plaintiff’s letter at the outstart refers to the plans and specifications “and to our plan Ho. 591-A submitted herewith,” and proposed to “furnish all tools, material and labor and place Raymond Concrete piles, for the price hereinafter stated.” Later in the letter it is definitely stated what piles it will furnish: “Price for One Hundred and Eighty-one (181) Raymond Concrete Piles, each 20 feet in length, shall be Five Thousand Four Hundred and Sixty ($5,460.00) Dollars. Should additional piles or additional lengths of piling be required, same shall be placed for the sum of One Dollar and Thirty Cents ($1.30) per lineal foot. Should shorter piles be found sufficient deduction from the 20 ft. length shall be made at the rate of Sixty Cents (60c) per lineal foot.” Here, then, was a statement of what the plaintiff proposed to furnish, and the price that would be charged for it. How the defendant insists that the plaintiff was not only responsible for furnishing the piles at the agreed price, but also insured that when driven they would be long enough so that the test to which I have referred could be applied, and that if they did not meet the test, the plaintiff could not recover. In other words, the defendant imposes upon the plaintiff a burden of determining before the pile is driven whether it would be sufficient at the peril of losing its *527compensation, even if it should go out of sight without meeting the test. I think that such was not the contract. The plaintiff did not become a subcontractor, stipulating to furnish the requisite foundation for the chapel, but offered to furnish and drive piles of stated lengths at stated prices. How many it would take and what lengths to make a suitable foundation according to defendant’s contract with Messrs. Warren & Wetmore depended upon conditions that could not be foreseen. The driving was done by blows of a steam hammer applied to a core incased in a shell. When the core had been driven its length, it was necessary to stop. If it was driven further, it could not be collapsed and withdrawn, leaving the shell into which the concrete was poured. The plaintiff’s man in charge testified: “ Q. Please answer the question as to the manner in which you obtained the directions to put down your piles ? A. Mr. Buck placed a stake for each pile driven. Q. And the pile was driven at the place where Mr. Buck put the stake % A. Every pile was so driven.” The plaintiff must drive where bidden, and is now called upon by defendant to insure that the pile would be long enough to meet a required resistance. Some light is also gained by a letter from the defendant to the plaintiff, in which it is said: “In reply to yours of the 17th inst. would say that in the course of conversation with the representative of Mr. Opdyke, it was understood that you drive on Thursday with your 40-ft. core, it being assumed from the borings that the required resistance can be secured with this core, if not, why then other steps will have to be taken.” This letter does not indicate that the defendant was indifferent or was absolving itself from care as to the length of the piles, but it shows that the question of the length of the core depended upon experiment. The defendant depends on the words: “ The pile core shall in each case be driven until not more than ten blows of a No. 2 vulcan steam hammer are required to secure 1 inch penetration.” Now this stipulation refers to each pile furnished, long or short, unless boulders or other obstructions be encountered which prevent securing further penetration. But if a pile were driven its whole length in the ground and no way was known to the trade of driving it further, and that is admitted, how could the hammer apply *528ten blows so as to secure further penetration? The whole matter comes back to this: whether when the plaintiff furnished the piles and drove them, the burden was cast on it of meeting what is called the test and so taking upon itself the responsibility of determining whether a pile would be long enough to make such penetration as the alleged request demanded. I think that it was not so, but that the intention was that the plaintiff should furnish piles of certain lengths and drive them in, and until they were beneath the ground it should meet the test, unless it should meet boulders or similar obstructions.
The judgment should be reversed and judgment ordered for the plaintiff for the price of the piles in dispute.
Judgment and order affirmed, with costs.