Opinion by
Mr. Chief Justice Sterrett,In an action of assumpsit brought by the First National *454Bank of. Beaver Falls against the First National Bank of Mercer, by consent of all parties John C. Whitla, above named, was allowed to intervene, as plaintiff, and John C. Moore and A. Seaton, as defendants; and this issue was thus awarded to determine said plaintiff’s right to the certificate of deposit in controversy. In granting the issue, it was provided that the articles of agreement of January 19,1893, between the parties, together with plaintiff’s averment of a breach thereof by the defendants, should stand as a declaration, etc.
The substance of said agreement was, that plaintiff covenanted to sell to defendants “ ten thousand dollars of his present stock of goods, store and shop fixtures, and deliver possession of the same between the first and fifteenth of March 1893,” and defendants agreed “ to purchase the same at the cost price thereof and pay for the same in cash upon the day of the delivery thereof to them between the first and fifteenth days of March 1893,” less “a discount of 12^ per cent.” Plaintiff further agreed that, between execution of the agreement and said 15th of March, he would “ reduce the stock of goods now in hand so that the value of the same shall not exceed the sum of ten thousand dollars.” He further bound himself to “ not engage in the clothing business in the borough of Beaver Falls for the period of five years from the first - day of April 1893,” and to transfer to defendants the lease he then held of the storé building occupied by him. Each of the parties agreed to deposit a certified check for $1,000, in the First National Bank of Beaver Falls, “ and in case either party should fail to carry out faithfully the agreements and covenants to be by them or him kept and performed,” the other party should receive “ said sum of one thousand dollars,” so deposited by the defaulting party.
The only evidence, tending to show any modification or waiver of the terms of said agreement, was to the effect that, owing to some misunderstanding between the parties, the goods were not delivered or paid for on or before the 15th of March, 1893, but the undisputed evidence is, as stated by the defendants in their history of the case, that “ it was agreed by all parties to drop all disputes and abide by the written contract When this conclusion was reached, A. Seaton, one of the defendants, left Beaver Falls and arranged for the cash to pay *455for the goods, and John C. Moore, the other defendant, remained to assist in making an invoice. On Thursday, March 16th, at noon, the store was closed and an invoice was taken, which was completed on Saturdajq March 18th. This invoice showed that the goods and fixtures then in the store amounted to $14,276.26.” When this result was reached plaintiff proposed to then and there take out the excess of goods over the $10,000 worth contracted for. He also proposed that, if defendants desired to purchase the excess of stock, he would take their note or notes therefor. No question was then raised by defendant, Moore, in regard to the $10,000 worth of goods, but desiring to consult his associate, Mr. Seaton, he started for Mercer, leaving Mr. Miller in charge of the store to receive for them the proceeds of the day’s sales. On Monday morning defendants wired plaintiff from Mercer, saying: “Can’t accept your proposition. We decline to take the goods. Have written you.” ■ In that letter, of same date, they say: “ Iii as much as you have failed to reduce' your stock of goods according to our contract, and the other plans for its reduction, suggested by you, are wholly unsatisfactory to us, under the circumstances we cannot take the goods. Please consider the contract .off and direct the bank to return to us our certificate of deposit for $1,000.” This was the end of negotiation ; and shortly afterwards the suit, in which this issue was awarded, was brought.
In view of the uncontradieted evidence, showing that plaintiff was ready and willing to perform his part of the contract and that defendants refused to perform theirs, the learned judge who presided at the trial directed a verdict for plaintiff. This binding instruction is contained in his answer to plaintiff’s fourth point, and constitutes the first specification of error. The second specification charges error in the court’s answer to defendants’ third point, recited therein, and the remaining specification complains of part of the charge therein recited.
Considering these in their inverse order, we are unable to discover any sufficient ground for sustaining the third specification.
Whatever may have occurred between the parties prior to March 16, 1893, it is undoubtedly true, as admitted by defendants themselves, that, on that day, “ it was agreed by all par*456ties to drop all disputes and abide by the written contract.” One of the defendants thereupon went to Mercer “ and arranged for the cash to pay for the goods; ” the other remained and assisted in making the invoice, which was completed on Saturday, March 18th. The footing of the invoice disclosed the fact that there were more goods on hand than were required to fill the contract, and the plaintiff promptly offered to take out goods sufficient, at cost, to reduce the stock, etc., to be delivered to defendants, to the amount named in the contract ; or, if defendants preferred, he proposed to let them have the excess on credit. Conceding, for sake of argument, that delivery, within the period specified in the agreement, was of the essence of the contract, strict performance, in that regard, had been waived and the parties had mutually agreed “ to drop all disputes and abide by the written contract.” On the footing of that waiver and agreement the invoice had been taken, with a result unexpected by both parties—an excess of goods', in value. The obvious remedy for that was then—as it had been before—in the exclusive control of plaintiff, and he proposed to then and there apply it, by laying aside a sufficient amount to reduce the invoice to $10,000. He had agreed to reduce the stock to that sum; but no mode of doing so was prescribed by the agreement. The defendants were in no way concerned in the excess, unless they concluded to accept plaintiff’s proposition to buy the same on credit. They had agreed to buy and pay cash for $10,000 worth of the stock, and plaintiff was bound to deliver to them that amount, neither more nor less. Reduction of the stock to that amount was plaintiff’s—not defendants’—affair; and he stood ready and willing to effect the reduction in a proper manner, waiting only to give defendants an opportunity to consider his proposition to sell them the excess on time. After conferring on the subject, defendants declined to accept that proposition, and, planting themselves upon plaintiff’s failure “to reduce your stock of goods according to our contract,” declared “ the contract off,” and requested plaintiff to direct the bank to return to them their certificate of deposit for $1,000. Their telegram and letter of March 20,1893, to plaintiff clearly define their position. That position is too narrow and untenable to form the basis of even' a plausible excuse, much less a successful legal defence. It was *457evidently an afterthought, born of a desire to repudiate their contract. We think, therefore, that the learned judge committed no error in charging as be did.
It is unnecessary to discuss the questions involved in the remaining specifications. They are so closely connected with the one we have just considered that further comment is not required. It follows from what has been said that there is no substantial error in either of said specifications.
Judgment affirmed.