abandonment of the work, and to provide against them there was inserted in the contract the provision that if for any reason the piers should not be constructed, the defendant should only pay for granite actually delivered "and cost of balance quarried and cut."

After the contract had been entered into and before the commencement of work upon the piers, Harrison assigned his interest in the contract to Beattie, the plaintiffs' testator. Later still, and in 1899, Beattie died, leaving a will in which the plaintiffs were named as executors. For convenience we will refer to the plaintiffs as parties to the contract with the defendant.

The lower courses for the piers, embraced in the first five thousand yards to be furnished, were to be of unusal size and weight, and the plaintiffs found it necessary to open two new quarries to procure them. The defendant, through Mr. Jacobs, its engineer, visited the quarries before the contract was made and fully understood that in view of the expense and labor involved in the opening of these quarries the price of $10.50 per yard was much less than the cost of getting out the first five thousand yards of granite, and that it was an average price based upon the prospect that all the granite required for the piers, much of which would be of smaller dimensions and more easily quarried, would be taken from these quarries.

From December 7, 1894, when the contract was made, until October 25, 1895, when the work was abandoned by the defendant, the plaintiffs continued the work of quarrying and cutting granite for the piers.

During the progress of the work the plaintiffs had delivered granite which was set in piers three and four, for which they had received payments in various installments amounting to the sum of $32,840.72, the last payment being made February 23rd, 1897. When this last payment was made the defendant took from the plaintiffs a receipt which covered only the stone actually set in the piers, with the exception of $566.39, which was for certain axed work, pene hammered

Statement of case.

[Vol. 196. work, and for allowances under arbitrary measurements contained in the specifications for the spaces occupied by the mortar between the courses of stone. No work was ever done upon pier one; a portion of the foundation work on pier two was done by the defendant, but it never progressed far enough to permit the laying of granite. In October, 1895, the plaintiffs had prepared and delivered on scows alongside the piers on Blackwell's Island a quantity of stone which included about two hundred yards of backing which was quarried and cut expressly for these piers and which had been inspected and accepted by the defendant at the quarries. This the defendant refused to receive and the plaintiffs were compelled to reship it to Leetes Island and there unload it.

On October 25, 1895, when the contract was abandoned by the defendant, the plaintiffs had also quarried and cut, in execution of this contract, 1,295.17 cubic yards of stone for the piers, of which 549.78 yards were face stone, and 745.39 cubic yards were backing stone. The greater part of this had been fully cut and ready for shipment. The plaintiffs, when advised of the defendant's abandonment of the work, caused to be measured all of the stone quarried and cut but not delivered, and then stopped further work under the contract. After the work was thus stopped, the plaintiffs demanded of the defendant payment of the expense incurred in the quarrying and cutting of stone not delivered. In March, 1897, the defendant sent its engineer to the quarries of the plaintiffs, who was then furnished with a list of the measurements made. The engineer examined the stone but only marked as accepted about 537 yards. After the abandonment of the work by the defendant in 1895, the plaintiffs sold 356 yards of the face stone for use in the construction of a bridge in the city of Hartford, Connecticut, for which they received the gross price of $5,314.40. They had incurred expenses in connection therewith for recutting, freight and commissions to the amount of $2,605.49, leaving a net profit of $2,708.91. The cost to the plaintiffs for quarrying and cutting the 1,295.17 yards of stone not delivered was proved to have been $16.80

per cubic yard, making a total of $21,758.85, and this was predicated upon the fact that it was cut for the heavy lower courses, which were much more expensive than the remaining courses, and upon the cost of opening new quarries. The whole amount of stone thus quarried and cut but not delivered, with the exception of 356 yards sold for the construction of the bridge at Hartford, remains in the quarry of the plaintiffs. The defendant insisted upon the right to offset against the plaintiffs' claim the value of the stone thus left in the latter's possession, as well as the net profit realized in the sale for the Hartford bridge, but it was not allowed by the referee, and the plaintiffs recovered judgment for $24,442.05, with interest amounting to $1,897.70, making a total of $26,339.75. From this judgment the defendant appealed to the Appellate Division, where it was unanimously affirmed.

James W. Treadwell and Joseph F. Keany for appellant. The referee erred in admitting evidence of oral statements made by Beattie to Jacobs at the quarries before the written contract was made, and in construing the contract in the light of those prior statements. (Thomas v. Scutt, 127 N. Y. 133; Dady v. O'Rourke, 172 N. Y. 447; McGarrigle v. McCosker, 83 App. Div. 184; 178 N. Y. 637; Stowell v. G. Ins. Co., 163 N. Y. 298; U. P. Co. v. N. Y. P. Co., 164 N. Y. 406; Brantingham v. Huff, 174 N. Y. 53; Waldron v. Fargo, 52 App. Div. 18.) The referee erred in his construction of the written contract. (Galle v. Tode, 148 N. Y. 270; Morehouse v. B. H. R. R. Co., 185 N. Y. 520; Le Gendre v. S. Ins. Co., 183 N. Y. 392; Arnot v. U. S. Co., 186 N. Y. 501; Code Civ. Pro. § 1023; Alcock v. Davitt, 179 N. Y. 9; Smyth v. B. U. R. R. Co., 193 N. Y. 335; People v. Most, 171 N. Y. 423; Dougherty v. L. F. Ins. Co., 183 N. Y. 302; Miller v. N. Y. R. Co., 183 N. Y. 123.) The referee erred in allowing recovery for the 200 yards of backing stone. As to this stone, the findings show that the defense of accord and satisfaction, pleaded in the answer, was fully made out. (Parsons v. Parker, 159 N. Y. 16; Nassoiy

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[Vol. 196.

v. Tomlinson, 148 N. Y. 326; Fuller v. Kemp, 138 N. Y. 231; Lewison v. M. T. Co., 60 App. Div. 572; Simons v. American Legion, 178 N. Y. 263; Goodrich v. Sanderson, 35 App. Div. 546; Vosburgh v. Teator, 32 N. Y. 561; Sears v. Grand Lodge, 163 N. Y. 374; Nickell v. Tracy, 184 N. Y. 386.)

L. Laflin Kellogg and Alfred C. Petté for respondents. The contract entered into expressly provided for payment by the defendant, in case of the discontinuance of the work, of the cost of the undelivered stone quarried and cut, and was properly construed as entitling the plaintiffs to the actual outlay and expense incurred in quarrying and cutting same. (Tremaine v. Hitchcock, 90 U. S. 158; Cutter v. G. B. Co., 190 N. Y. 252.) No error was committed in the reception in evidence of testimony showing the facts and surrounding circumstances attending the execution of the contract. (Blossom v. Griffin, 13 N. Y. 569; Springsteen v. Lawson, 32 N. Y. 703; Knapp v. Warner, 57 N. Y. 668; Clark v. N. Y. L. Ins. & T. Co., 64 N. Y. 33; Coleman v. Beach, 97 N. Y. 545; Smith v. Kerr, 108 N. Y. 31; Middleworth v. Ordway, 191 N. Y. 404; II. T. B. Co. v. C. S. Ry. Co., 72 Fed. Rep. 317; Sweet v. Henry, 175 N. Y. 268.) No error was committed in holding that as to the 200 yards of backing stone there had been no accord and satisfaction which precluded recovery. (E. V. B. Co. v. Prosser, 157 N. Y. 289; Komp v. Raymond, 175 N. Y. 102; Laroe v. S. L. Dairy Co., 180 N. Y. 367; B. M. Co. v. B. H. I. Co., 58 App. Div. 66.)

WERNER, J. The unanimous affirmance by the Appellate Division of the judgment recovered by the plaintiffs, limits our right of review to the rulings upon evidence made at the trial, and the legal conclusions adopted by the referee. Although the case as thus narrowed is extremely simple, it is characterized by a few remarkable features which serve to give it an air of complexity. The first thing worthy of

N. Y. Rep.]

Opinion of the Court, per WERNER, J.

notice is the evident lack of attention to detail in the formulation and execution of a contract having to do with a large and important subject. The defendant had undertaken to build a great bridge over the East river at Blackwell's Island. The work was commenced under conditions which rendered it practically certain that serious legal obstacles would be encountered which might, and as the sequel shows did, prove fatal to the enterprise. Despite these conditions, the only writing which evidences the contract between the parties is a letter written to the defendant's engineer by the plaintiffs' predecessor in title. The three most prominent features of this letter are: (1) That it was written in anticipation of a more formal contract which was later to be executed; (2) that the contract price of $10.50 per yard for the stone to be furnished was a low average price based upon the prospect of furnishing all the stone for the whole work, and (3) that the work was commenced with a view to its possible abandonment before completion, in which event the measure of the plaintiffs' compensation was to be the contract price for stone actually delivered, and the cost of quarrying and cutting stone not delivered.

As appears from the foregoing statement of facts, no formal written contract was entered into after the letter of December 7, 1894, was written; the work was abandoned before completion; the plaintiffs had quarried and cut a large quantity of stone which they were not permitted to deliver; and for the stone quarried and cut but not delivered they recovered a sum largely in excess of the contract price for that which was delivered. At first glance this appears to be an incongruous result, but a study of the case shows that if the contract was correctly construed by the learned referee and no improper evidence was admitted as to the measure of damages, that result is not only logical but necessary. The plaintiffs were in a peculiar position. They had agreed to furnish an initial five thousand yards of granite of unusual dimensions, which necessitated the opening of new quarries and the quarrying of a vast amount of stone, some of which would not be suitable for any of the work, and much of which could