The contract between the plaintiff and the defendant's intestate, G., was, that G. would furnish the plaintiff what brick he might want to use in the erection of a hotel he then contemplated building, at the price of eight dollars per thousand. *Page 127 There was no other agreement as to the quantity of brick to be delivered. Under this arrangement the plaintiff advanced the sum of $1,200, both parties at that time supposing that the quantity of brick wanted by the plaintiff would amount to more than that sum; but there was no agreement that G. should furnish, or the plaintiff receive, brick to that amount. Subsequently the plaintiff suspended work on the building, and notified G. that no more brick were wanted, and none were delivered afterwards. Brick were furnished under the contract to the amount of $415.60, and afterwards, at the plaintiff's request, G. paid back to the plaintiff's agent $300 of the money advanced to him on the brick contract. This action is to recover the balance of the $1,200, and we see no reason why it may not be maintained either by the plaintiff or his assignee in bankruptcy. The contract on the part of the defendant was, to deliver what brick the plaintiff wanted for the price of eight dollars per thousand; and on the part of the plaintiff, to pay eight dollars per thousand for what brick he wanted to use; and the expectation of the parties that more brick would be wanted than were actually used did not vary or affect the terms of the agreement. There was no breach of the contract by the plaintiff in not wanting more brick, and the referee finds that G. suffered no damage in consequence of no more brick being wanted.
As the right of the plaintiff to prosecute the claim depends upon facts not appearing in the case (Towle v. Rowe,
Case discharged.
STANLEY, J., did not sit: the others concurred.