| NY | Nov 14, 1876
Independently of the question of the admissibility of the evidence offered, under the answer, we are of opinion that it was properly rejected on the merits.
The clause of the contract upon which the offer was based was as follows: "All stone obtained from excavations which may, in the opinion of the engineer, be suitable for masonry, shall be deposited in some convenient place, within eight hundred feet haul, to be designated by him, and shall be the property of the company."
This provision necessarily contemplated that during the progress of the work the engineer should point out such stone as he deemed suitable for masonry, and should designate the place to which he might desire it to be removed. The parties must have intended that the opinion of the engineer should *184 be expressed. Until this was done the contractor could not know whether or not the company intended to claim the stone. If no such claim was made he was at liberty to use the stone in the performance of the work. It was necessary that some disposition be made of the stone at the time, as the excavation could not proceed without removing it, and if not claimed by the company the contractor had the right to assume either that they did not deem it suitable for masonry or that they waived the right reserved by the contract.
The offer which was rejected was not to prove that any stone was used by the plaintiffs which the engineer had claimed under the clause in question, or which was, in his opinion, suitable for masonry, but simply that the plaintiffs had used in the work stone taken from the excavation. There was nothing in the contract which precluded the plaintiffs from using such stone, if not claimed by the engineer and directed by him to be deposited. That branch of the offer was consequently insufficient and was properly rejected.
The second branch of the offer was clearly objectionable. The fact that in the final estimate a charge for stone taken from the excavation had been made by the company against the defendant was not competent proof of liability for such stone. For all that appears in the case the charge was not a proper one.
The rejection of this offer being the only subject of exception, the judgment should be affirmed.
All concur.
Judgment affirmed. *185