Opinion of the Court, per Werner, J.

[Vol. 196.

only be used after the large dimension blocks had been delivered and set in place. The contract price of the large blocks was much less than the cost of production, and the plaintiffs' only hope of a profit lay in the completion of the whole contract, in which event the contract price would have been a fair average one. But, underlying these considerations, there was the fundamental fact that the work might have to be abandoned at a time when the plaintiffs had quarried and cut a large quantity of stone which had not been delivered, and which, under the express terms of the contract, the defendant was under no obligation to accept. It is obvious that in such circumstances the contract price might not equal the cost of production, and that is what actually happened. The referee construed the contract to mean that, as to the stone quarried and cut but not delivered, the actual cost of production, and not the contract price, was the measure of damages which the plaintiffs were entitled to recover. As to that we think he was right. The clause of the contract "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," is meaningless unless thus construed, and when read in the light of the attendant circumstances it clearly indicates the intention of the parties to provide for a contingency in which the contract price would be an wholly inadequate measure of damages. Counsel for appellant contends that "cost of balance quarried and cut" means the contract price less freight and profit. The answer to the contention is that all the parties understood that there could be no profit unless there should be a substantial completion of the whole contract. It is true that under the judgment the defendant is compelled to pay more for stone which it never received and to which it acquired no title, than it paid for stone actually delivered. That is not the fault of the law. It is due wholly to a peculiar but specific provision in the contract. Cost, not contract price, was the measure of damages adopted by the parties as to stone quarried and cut, but not delivered. In this connection we have still to consider, however,

N. Y. Rep.]

Opinion of the Court, per WERNER, J.

whether the proper method was employed in ascertaining the cost. Without going into the voluminous details of the evidence bearing upon this subject, it is enough to say that a separate account was kept of the expense of working the two new quarries which were necessarily opened for the production of the stone which the plaintiffs were to furnish. This showed the expense of quarrying and cutting to have been $16.80 per cubic yard. By multiplying that price by the number of yards quarried and cut for this work, but not delivered, the referee found the total of defendant's liability for that item. Although this may seem to be a harsh result, no other method is suggested by which a more just and logical result could be arrived at. The method employed seems to have been not merely the best, but the only one by which the plaintiffs' loss could have been ascertained. As to this branch of the case it is also urged by counsel for the appellant that incompetent testimony was admitted by the referee, which varied the terms of the written contract, and he cites Stowell v. Greenwich Ins. Co. (163 N. Y. 298) and other similar cases in support of his contention. The cases referred to clearly state the law of this jurisdiction, but we think they have no application to the case at bar. This is not a complete and unambiguous written agreement constituting the final respository of all the stipulations between the parties. It falls rather within the classification represented by Thomas v. Scutt (127 N. Y. 133), in which it was held that when a written instrument is obviously not a complete contract, parol evidence, not inconsistent with the writing, may be given to show what the whole contract is. That is precisely the case at bar, for the letter referred to so clearly speaks of a contract yet to be made, and of acts already done by the plaintiffs, 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. In these conditions it was, we think, entirely proper for the referee to receive evidence of the engineer's, Jacobs, visit to the quarries, and of what was said and done in his presence with reference to the

Opinion of the Court, per WERNER, J.

[Vol. 196. opening of the quarries for the express purpose of enabling the plaintiffs to fulfill their contract with the defendant.

We think there was no accord and satisfaction as to the 200 yards of backing, which the plaintiffs attempted to deliver, and the defendant refused to receive, although it had been formally inspected and accepted by defendant's engineer. There is nothing in the findings to establish an accord and satisfaction as to this item. The finding to the effect that the defendant had paid "all moneys due under the contract for stone delivered by him (Beattie) 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 a refusal to receive.

Many other questions are urged upon our attention by counsel for appellant, but none of them seem to require discussion except the one relating to defendant's asserted right of set-off. That question presents the only error of sufficient importance to justify our interference with the judgment as it stands. We do not agree with the defendant in so far as it claims the right to set off against the plaintiffs' damages' the value of the stone quarried and cut but not delivered which still remains in the quarries. As to that there was no transmission of title and no proof of value. Hence there was no basis for the set-off. That is all that need be said about it. A different question arises as to the stone which was recut and sold for the Hartford bridge. It was the duty of the plaintiffs to exercise all reasonable means to reduce, or at least not unnecessarily to enhance, their damages. When they sold for use upon the Hartford bridge a portion of the stone left on their hands by the defendant, their damages were diminished to the extent of the profit which they made on the Hartford contract. If the defendant is not credited. with this amount the plaintiffs will be receiving double payment for the same thing. This naked statement of that feature of the case is enough to show that the learned referee was in error in not allowing the defendant's offset to the extent of the plaintiffs' profit on the Hartford contract.

Although this was error it does not require or justify a reversal of the judgment, for it can be remedied by a simple modification. The profit to the plaintiffs on the Hartford contract was $2,708.91.

As no interest was allowed by the referee upon the item in which the Hartford stone was included, the net profit referred to is the amount by which the judgment should be reduced, and, as thus reduced, affirmed, without costs to either party in this court.

CULLEN, Ch. J., GRAY, VANN, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.

Judgment accordingly.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRANK JACKSON, Appellant.

Murder evidence examined and held sufficient to sustain judgment of conviction — when court will reverse judgment, although no exceptions were taken-time as an element of premeditation and deliberation.

Defendant was convicted of murder in the first degree. On a review of the evidence, held, that it was sufficient to warrant the finding that the homicide was committed with premeditation and deliberation and that the verdict of the jury was amply justified. While this court may, in a capital case, reverse the judgment even if no exception be taken, and if the error is so substantial as to have jeopardized the rights of the defendant and induced a verdict against him which otherwise would not have been rendered, it would be the duty of the court to reverse without an exception, it is settled law that the defendant cannot claim as a matter of right review of errors to which no objection and exception has been taken. While, under the statute, to constitute murder in the first degree premeditation and deliberation must precede the act of killing, no particular or prescribed lapse of time must occur between the two. It is enough that sufficient time elapses for the jury to find as a matter of fact that premeditation and deliberation did exist.

(Argued October 21, 1909; decided November 9, 1909.)

APPEAL from a judgment of the Supreme Court, rendered. December 17, 1908, at a Trial Term for the county of

Opinion of the Court, per CULLEN, Ch. J.

[Vol. 196.

Washington upon a verdict convicting the defendant of the crime of murder in the first degree.

The facts, so far as material, are stated in the opinion.

Frederick Fraser and A. N. Richards for appellant. The evidence was insufficient upon which to base a finding of premeditation and deliberation necessary to sustain a verdict convicting the defendant of the crime of murder in the first degree. (Stokes v. People, 53 N. Y. 164; People v. Leighton, 10 Abb. [N. C.] 261; 88 N. Y. 117; People v. Mangano, 29 Hun, 259; People v. Raffo, 180 N. Y. 434; People Barberi, 149 N. Y. 256; People v. Conroy, 97 N. Y. 75; People v. Majone, 91 N. Y. 211.) The court committed reversible error in its charge to the jury. (People v. Boggiano, 179 N. Y. 267; Early v. State, 16 Ohio C. C. 646; Burns v. State, 3 Ohio Dec. 122; People v. Barberi, 149 N. Y. 256.)

Erskine C. Rogers, District Attorney, for respondent. There was sufficient evidence of premeditation and deliberation. (People v. Kennedy, 159 N. Y. 346; People v. Ferrare, 161 N. Y. 365.) The court did not commit reversible error in the charge to the jury. (People v. Koenig, 180 N. Y. 155; People v. Ferraro, 161 N. Y. 365; People v. Conroy, 97 N. Y. 62; People v. Wilson, 141 N. Y. 85; People v. Kennedy, 159 N. Y. 346; People v. Hawkins, 109 N. Y. 408.)

CULLEN, Ch. J. The appellant, a colored man, was convicted of murder in the first degree in having caused the death of Elizabeth Jackson, a colored woman, on the 24th of August, 1908. Though not man and wife the appellant and deceased had been living together as such for some time, the relation having been formed in 1907. For a few weeks prior to the homicide the parties had been boarding with one Mosher in Sandy Hill, the deceased being in the service of the family of Judge Ingalsbe as cook, but returning to