(concurring). Under the contract in the record, the plaintiff agrees to purchase all coke defendant can make between January and 31st December, 1899. Defendant guaranties within that time to make not less than 20,000 Ions. Deliveries and orders to be made weekly. If defendant could make the 20,000 tons within the time specified, and did not make it, there would be a breach of the contract. If the defendant could not make 20,000 tons, this is a breach of the guaranty. It seems that defendant could have made 20,000 tons, and did not make it. Is it protected by the strike clause? The causes mentioned in this strike clause did stop the manufacturer for a time. In this event the deliveries could he suspended1'; that is, cease temporarily, to be resumed when the cause of suspension was removed. What effect did this have on the total delivery? All the output of the plant — all the coke the defendant could make within the time specified — was purchased by plain! iff. If the weekly deliveries were suspended in whole or in part for causes within the strike clause, just as soon as they were resumed the whole output — all that could be made — belonged to plaintiff, under the contract of purchase. So none of it could be used by the defendant to make up any deficiency. This would be impossible, as the contract was that the plant must during this period be run to its full capacity, for the benefit of plaintiff, and it was entitled to all that could be made. If this be so, — that when the deliveries were suspended the deficiency could not be made up,— then the causes mentioned in the strike clause prevented the output of 20,000 tons within the period limited. This clause certainly excused the nondelivery in the weekly installments. The failure to deliver these weekly installments prevented the delivery of 20,000 tons In the time specified. Nothing is said in the contract of any delivery after 31st December. On the contrary, the contract applies only to the output between January and December 31st. Suppose that coke had fallen in price, and that, when 31st December came, by reason of the causes in the strike clause there was still 6,goo tons to be made to make up 20,000 tons; could the defendant compel plaintiff to take these 6,000 tons at the contract price, greatly above the market price ? It cannot be said that plaintiff *264could protect itself by canceling the contract. This cancellation must be during the continuance of the suspension. It appears, then, that the defendant contracted to deliver in weekly installments all the coke its plant could make, running full, between January and 31st December, 1899, guarantying that it would deliver at least 20,000 tons. The strike clause justified the suspension of the weekly deliveries. The deficit of such suspension could not be made up out of the subsequent output, because the plaintiff was entitled to all that could be made. Therefore the cause mentioned in the strike clause prevented the delivery of 20,000 tons, and excused its nondelivery. And as the contract applied only to the output up to 31st December, the deficiency could not be supplied by any output after that time.
For these reasons, I concur in the opinion of the court.