after making the foregoing statement of the case, delivered the opinion of the court.
i. This was a contract for the delivery in Indiana of six miles of first-class secondhand six-inch'pipe, which would pass the inspection of defendant, at 40 cents per foot, less 5 per cent., and in fulfillment the defendant was bound to deliver the full amount. There is nothing in the correspondence from which it could be inferred that the quantity of six miles was not material and determinative, and, when the plaintiff sold that definite quantity out of more than nine miles it had offered, it was bound to deliver it. If the plaintiff desired to contract only for such pipe as the defendant might select out of the quantity it had on hand at the places designated in its letter, it should have made its offer accordingly; but, when it agreed to sell and deliver six miles upon the terms stated, it could not fulfill its obligation by delivering 8,o6o)4 feet. The remarks of Mr. Justice Bradley in Brawley v. United States seem pertinent:
*416“From an examination of the authorities, it seems to us that the general rules which must govern this case may be expressed as follows: Where a contract is made to sell or furnish certain goods, identified by reference to independent circumstances, such as an entire lot deposited in a certain warehouse, or all that may he manufactured by the vendor in a certain establishment, or that may be shipped by his agent or correspondent in certain vessels, and the quantity is named with the qualification of ‘about’ or ‘more or less,’ or words of like import, the contract applies to the specific lot; and the naming of the quantity is not regarded as in the nature of a warranty, but only as an estimate of the probable amount, in reference to which good faith is all that is required of the party making it. * * * But when no such independent circumstances are referred to, and the engagement is to furnish goods of a certain quality or character to a certain amount, the quantity specified is material, and governs the contract.” Brawley v. United States, 96 U. S. 168-171, 24 L. Ed. 622.
See, also, Norrington v. Wright, 115 U. S. 188, 204, 6 Sup. Ct. 12, 29 L. Ed. 366; United States v. Pine River Logging & I. Co., 32 C. C. A. 406, 89 Fed. 907.
The case should have been submitted to the jury to ascertain the damages, if any, suffered by the defendant on account of the failure of the plaintiff to fulfill its obligation to deliver the amount of pipe called for by the agreement. This interpretation of the contract disposes of all the assignments of error save two.
2. After the pleadings had been read, the court ruled that the plaintiff was entitled to judgment for the amount of pipe furnished at the contract price, in the absence of testimony, and that the burden rested upon the defendant to show that the plaintiff had declined to carry out its contract, and the amount of damages it suffered from such refusal. The defendant claimed that, although the answer admitted the contract and the delivery of the pipe as alleged in the petition, no recovery could be had unless the delivery of the balance covered by the contract had been waived or prevented by the defendant. The rule, under the great weight of authority, now is that a party who has failed to perform his contract in full may recover compensation for the part performed, less the damages occasioned by his failure. McDonough v. Evans Marble Co., 50 C. C. A. 403, 112 Fed. 634-637. Therefore, under the admissions in the answer, in the absence of proof, a judgment should have gone for the plaintiff; and there was no error in the ruling of the court compelling the defendant to sustain its cross-? petition by evidence, or submit to a verdict and judgment.
3. The defendant endeavored to show by Edward Sweeney, who was to inspect the pipe for it, that, after he had inspected and accepted the amount sued for, he endeavored to inspect the balance of six miles, but that the person in charge for the plaintiff whose duty it was, under the contract, to tender it for inspection, prevented him from inspecting it. When the witness endeavored to tell what the man in charge for the plaintiff said, it was ruled out by the court on the ground that the authority of the person in charge to make any statements which would bind the plaintiff had not been shown. The president of the plaintiff corporation had testified that one Sullivan, who was its superintendent, was in charge of the pipe for the purpose of making delivery, and had full authority to bind the company; and because the witness Sweeney did not recognize a man whom the plain*417tiff had stand up in the audience as the one who was in charge of the pipe, without any further proof that the man in the audience was Sullivan, the court granted the motion to strike out all of Sweeney’s testimony. This was error. The witness had sworn that he thought the man in charge was Sullivan, and plaintiff’s president had sworn that Sullivan had full authority to bind it; and the failure of the witness, months after the transaction, to recognize the man in the audience as the same man, could not be conclusive on the jury, especially when there was no evidence that he was Sullivan, and no evidence that he was not the man in charge, who refused to allow an inspection of the pipe. But whoever the man might be, if he was in charge of the pipe- for the purpose of tendering it for inspection, and declined to do so, it would be presumed that he had authority to bind the plaintiff, until the opposite was shown. The court ruled that whatever was done could be shown, and, if any physical force to prevent an inspection was exercised, that could be shown, but what was said could not. If it could be shown that the inspection was prevented by physical force, it certainly could be shown what was said at the time by the person exercising that force. The statements made were so connected with the acts as to constitute them a part of the res gestae, and the evidence of them was as admissible as was evidence of the acts themselves.
For the reasons pointed out, the judgment must be reversed, and a new trial granted.