Opinion by
Mb.. Justice Fell,By the terms of the contract entered into by the parties to this action the plaintiffs were to furnish the defendants with nine hundred thousand paving bricks at an agreed price and of a stipulated quality and size. The action was to recover for one hundred and seventy thousand bricks furnished and accepted, and for the loss sustained by the refusal of the defendants to receive the balance. The contract called for “No. 1 paving bricks,” and the main contention at the trial was as to the quality of the bricks tendered.
The bricks were to be used in paving streets in Uniontown, and the contract should be considered as having been made with reference to that use and to the previous action of the borough authorities upon the subject. Before awarding the contract for paving the streets, the borough council procured from a number of manufacturers samples of paving bricks with the prices at which they would be furnished, and finally selected those made by the plaintiffs as be.st adapted to their purpose ; and the contract for paving made with the defendants required the use of these bricks. When the plaintiffs entered into the contract with the defendants to furnish bricks they knew that the contract for paving called for the use of their bricks, and that the selection of these was based upon the samples furnished by them to the borough authorities. A street committee represented the borough in the supervision of the work and had the power, conferred by the paving contract, to determine finally between the defendants and the borough all questions as to the quality of the work done. Differences arose between this committee and the plaintiffs as to the bricks furnished. It was alleged that the plaintiffs, after receiving complaints from members of the committee, agreed with them that an inspector should be appointed. This was denied by the plaintiffs, and in commenting upon the issue of fact thus raised the learned *569judge used the language which constitutes the first assignment of error. The whole charge upon this point should however be considered in explanation of the part excepted to. It was said: “ If Mr. Park made an agreement there that an inspector should be put on and that whatever bricks were not fit should be thrown out, then he would be bound by it-; but it would not follow from the mere fact that the inspector threw the bricks out, that he would be bound by it. If good bricks were thrown out by the inspector, then he would be entitled to pay for them. He of course could make an agreement by which he would be bound absolutely by the judgment of the inspector. If he had agreed to submit to the judgment of the inspector and take back whatever bricks the inspector would not pass, then as a matter of course he would be bound by it, but I recollect no testimony that goes to that extent. The testimony in the case is to the effect, he denying the allegation of course, that it was agreed that an inspector should be put on there and that he would not claim for the bad bricks.” The instruction was in effect that if the plaintiffs agreed with the committee for the appointment of an inspector not expressly clothed with power to bind them by his decision, and he in disregard of his duty threw out good bricks, they would not be bound by his action. The only question to be considered is whether this was correct.
The contract to pave the streets was between the defendants and the borough. The contract to furnish bricks was between the defendants and the plaintiffs. These contracts were distinct and independent, and did not together constitute a tripartite agreement which gave the borough any right of action. against the plaintiffs. The plaintiffs might have stood upon their contract rights and refused to deal with any one but the party to whom they were responsible. They however did not do this. Upon complaints of the quality of the bricks they were furnishing, made directly to them by the borough authorities, they visited Uniontown and conferred with the street committee. The purpose of the conference was to reach a mutual understanding as to the subject of dispute. Each party had an interest in doing this. The borough would thus secure, without dispute or litigation with its contractor, the bricks for which it had stipulated. ■ The plaintiffs, as indicated by the *570testimony, were moved by a desire not to have the reputation of their bricks injured by their rejection; and another motive to be gathered from the relation of the parties was the moral obligation arising from the fact that the selection by the borough of the bricks to be used was based upon the samples which they had furnished. Whatever the interest or the motive, at this point these parties attempted the adjustment of the dispute between them concerning the quality of the materials which the defendants were required to buy of one and use for the other. If they agreed upon this the defendants were relieved of responsibility with regard to it.
If an inspector was appointed by agreement it must be assumed that he was to represent both parties in making an inspection. Otherwise the agreement would have been senseless. The committee was at liberty to inspect without the assent of any one. That was its right, and as between the borough and the contractor it had the power to determine finally what bricks should be used. An inspection in the interest of either party would have effected nothing, and the desired end—a settlement of the question as to what bricks should go into the pavement—could be reached only by an inspection by some one who represented both. There was nothing else to agree about. If then the inspector represented the plaintiffs as well as the borough, his inspection, however unjust or unwise, determined what bricks the defendants were to use. If the parties by agreement had jointly made an inspection, the committee would have been estopped from afterward asserting that the bricks selected as fit for use were in fact unfit; and the plaintiffs likewise would have estopped themselves from making any claim for bricks rejected, for the reason that they had by their own act determined what were good and what were bad, and led the defendants to use the one and reject the other. The act of their joint agent would have the same effect, and as fully as if he had been expressly clothed with power to bind them by his decision. While the dispute between the committee and the plaintiffs lasted, the defendants were left to their own judgment. They were bound by their contracts on the one hand to use the plaintiffs’ bricks and on the other to use only such bricks as were satisfactory to the committee, and the responsibility of selection rested with them. When however these parties agreed as to the quality of the *571bricks a new course was marked out for the defendants. Before, the test to which they were held was the use of a No. 1 brick. Now it became a brick which had passed inspection, and they were not required to use any other.
The case was carefully and ably tried by the learned judge, and the charge and answers to points clearly and fully presented the issue involved. We find no error in the-record except in the portion of the charge which we have considered. Testimony of what had occurred between the plaintiffs and the borough authorities before the awarding of the contract was admitted, but with a limitation to show the quality of the bricks to be furnished. Holding the opinion we have expressed as to the effect of an agreement to appoint an inspector, we think that upon a retrial this testimony should be admitted in full as bearing upon that question.
The first assignment of error is sustained, the judgment is reversed and a venire de novo awarded.