Dissenting opinion, per VANN, J.

[Vol. 196.

insurance and that is what the insured had the right to believe the insurer meant. Neither contracting party was looking after buildings, but after persons on fire in buildings and that was the unfortunate situation of Mrs. Manning. Even if no part of the physical structure had been burned, nearly every one would have said that the house was on fire.

The clause should be construed in accordance with the general purpose of the contract, which was to insure a human being against the effects of accident. This general purpose should not be cut down and the object of the contract defeated except by words of such clear and unmistakable meaning as not to require construction. "It is a rule of law, as well as of ethics, that where the language of a promisor may be understood in more senses than one, it is to be interpreted in the sense in which he had reason to suppose it was understood by the promisee." (Hoffman v. Etna Fire Ins. Co., 32 N. Y. 405, 413.) As a great writer on insurance has said, and we have adopted his language in a late case, "No rule, in the interpretation of a policy, is more fully established, or more imperative and controlling, than that which declares that, in all cases, it must be liberally construed in favor of the insured, so as not to defeat without a plain necessity his claim to the indemnity, which, in making the insurance, it was his object to secure. When the words are, without violence, susceptible of two interpretations, that which will sustain his claim and cover the loss must, in preference, be adopted." (May on Insurance, § 175; Rickerson v. Hartford Fire Ins. Co., 149 N. Y. 307, 313.)

A striking application was made of this rule, which was established long before Mr. May clothed it in such forcible language, in Northrup v. Railway Passenger Assurance Company (43 N. Y. 516). In that case the insurance was against death from personal injury "when caused by any accident while traveling by public or private conveyances, provided for the transportation of passengers." The insured while on a journey from one part of the state to another traveled by the Erie railway to Watkins, thence by steamboat

N. Y. Rep.]

Dissenting opinion, per VANN, J.

to Geneva, intending to take a train of the New York Central at that place. The distance from the steamboat landing to the railway station was about seventy rods, and although she might have taken a public hack to carry her, she started with her friends to walk and "while in the usual route slipped and fell on the sidewalk, and in the fall the back of her head came in contact with the frozen snow and earth, and she sustained serious injuries thereby from which," soon afterward she died. It was held that the death was covered by the terms of the policy and that the deceased was to be regarded as having received the injury while traveling by public conveyance.

Here a literal construction would have prevented a recovery, for walking is not, in fact, "traveling by public or pri vate conveyances provided for the transportation of passengers," but the court, construing the policy in accordance with its purpose, held that this was its meaning in law. As was well said by the Appellate Division: "If walking seventy rods upon a sidewalk of a village street is to be construed as traveling in a public conveyance for the transportation of passengers, it would seem to follow that a death caused by the burning of the contents of a room in a building may fairly be construed to be caused by the burning of a building."

Moreover, the defendant prepared and executed the con tract, and, hence, is responsible for the doubt which caused the courts below to differ, and ourselves as well, as to the meaning of the clause in question. (Rickerson v. Hartford Fire Ins. Co., supra.) It will not do to recognize these rules as the law governing construction, and yet refuse to apply them in a case where ambiguity of meaning is demonstrated by a difference of opinion as to what the real meaning is, not only in the courts below, but in the very court about to decide the case. A refusal to apply under such circumstances is pro tanto a destruction of the rule itself.

I think that the trial court erred in refusing to allow the plaintiff to go to the jury and in directing a verdict for the

defendant, an exception in due form having been taken to each ruling.

The order of the Appellate Division should be affirmed and judgment rendered against the appellant, with costs in all

courts.

CULLEN, Ch. J., EDWARD T. BARTLETT, HISCOCK and CHASE, JJ., concur with WILLARD BARTLETT, J.; HAIGHT, J., concurs with VANN, J.

Order reversed, etc.

JOHN BEATTIE et al., as Executors and Trustees under the Will of JOHN BEATTIE, Deceased, Respondents, v. THE NEW YORK AND LONG ISLAND CONSTRUCTION COMPANY, Appellant.

Contract sale when actual cost of article to be delivered, not contract price, is measure of damages, upon purchaser's refusal to complete contract offsets to such damages

evidence.

The owner of granite quarries agreed to furnish a contractor granite of unusual dimensions for the foundations of bridge piers, at a certain price, which was much less than the cost of getting out the stone contracted for, upon the consideration that the quarry owner should have the contract for all of the granite required for the piers. It was also agreed that if for any reason the piers should not be constructed, the quarry owner should be "only paid for granite actually delivered and cost of balance quarried and cut." After part of the stone for the foundations had been quarried and cut, some of which had been delivered and paid for, the work was abandoned. Thereupon the owner of the quarry demanded from the contractor payment of the expense incurred in quarrying and cutting stone not delivered. This was refused and in this action against the contractor, held, (1) that, under the terms of the contract, the actual cost of quarrying and cutting the undelivered stone, and not the contract price thereof, is the measure of damages; and (2) that the defendant is not entitled to set off against such damages the value of the stone quarried and cut which still remains in the quarries. After the abandonment of the work by the defendant, plaintiff sold part of the stone so remaining. Held, that the defendant is entitled to be credited upon the damages recovered by plaintiff with the profit made by plaintiff on such sale, since his damages were diminished to this extent,

The contract in question is evidenced by a letter written by the plaintiff and approved by the defendant, which speaks so clearly of a contract yet to be made, and of acts already done by plaintiff, as to leave no room for doubt that the parties had acted in anticipation of reducing their contract to writing when it should become more certain just what the instrument should embody. Hence, parol evidence, not inconsistent with the letter, was admissible to show what the whole contract was. It was proper, therefore, to receive evidence that defendant's engineer had visited plaintiff's quarries, and of what was there said and done in his presence with reference to the opening of the quarries for the express purpose of enabling the plaintiff to fulfill his contract with the defendant.

At the time work on the piers was abandoned plaintiff had, lying in scows alongside the piers, a quantity of stone which the defendant refused to receive, although it had been formally inspected and accepted by defendant's engineer. Held, that a finding that defendant had paid "all moneys due under the contract for stone delivered by him (plaintiff) to the defendant thereunder" relates to stone actually delivered, and does not embrace this item, as to which there was an attempted delivery, but also refusal to receive; and hence, that there was no accord and satisfaction as to this stone.

Beattie v. N. Y. & L. I. Construction Co., 127 App. Div. 923, modified.

(Argued October 29, 1909; decided November 9, 1909.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 18, 1908, affirming a judgment in favor of plaintiffs entered upon the report of a referee.

On the 7th day of December, 1894, John Beattie, the plaintiffs' testator, and Lynde Harrison of New Haven, Connecticut, were the owners of granite quarries situate at Leetes Island upon Long Island Sound in the state of Connecticut. On that day they entered into a contract with the defendant, partly evidenced by a letter which reads as follows: "NEW HAVEN, CONN., "December 7, 1894.

"MR. C. M. JACOBS, C. E.:

"DEAR SIR.- Mr. John Beattie and myself are now engaged in preparing for the New York and Long Island Bridge at Blackwell's Island, about 5,000 yards of granite for the lower courses of the piers. These are to be furnished at

10.50 per yard under the agreement made with yourself and Mr. Corbin a few weeks ago.

"We are almost ready to begin details for the remainder of the granite required under the specifications furnished for the piers required for the Bridge, on the terms given you by Mr. Northrup, acting as our agent; 10.50 per yard for all stone required, and a charge of 50 cents a foot extra for the axed work that may be ordered; the contract to be made with the N. Y. & L. I. Construction Company, and signed as soon as prepared. In the meantime we will go on with the work; it being understood that we have agreed to furnish the 5,000 yards named at the very low price named, in consideration of our having the contract with the Construction Co. for the entire granite required for the piers. It is understood that if for any reason the piers should not be constructed, we are only paid for granite actually delivered and cost of balance quarried and cut.

"O. K.

"A. C."

66

(Signed) LYNDE HARRISON. "for myself and as Att'y for John Beattie.

The "C. M. Jacobs, C. E.," to whom it was addressed, was a civil engineer employed by the defendant to prepare plans and specifications for a bridge across the East river at Blackwell's Island, and to superintend its construction. The initials "A. C." at the lower left-hand corner of this letter are the initials of Austin Corbin, who was then the president of the defendant. As appears from this letter, the writers thereof were then engaged in quarrying and cutting for the defendant about five thousand yards of granite to be used in the lower courses of the piers, which were to form the substructure of said bridge. The price for this stone was fixed at $10.50 per yard, upon the understanding that the writers of the letter were to have the contract with the defendant for furnishing all the granite to be used in the construction of the piers. The record discloses that at that early day it was anticipated that contingencies might arise which would necessitate the