majority"> Barrett, J.:

The question whether or not the trial court erred in dismissing the counterclaim of the appellants is one of mixed law and fact.' It will be well to consider first the construction to be given to the ■contract. The performance of the contract was made contingent ■upon strikes and boycotts. The appellants claim that the strikes referred to were only such as might occur in the shops of the contractor. We see no reason for thus limiting the words. The •obvious intent in inserting the clause was to protect the contractor from liability for delays which it could not help, so far as they .should be due to strikes. There is no reason to believe that any .strike which had a legitimate tendency to retard the contractor was not meant to be covered by the expression in the contract. It does not,- however, follow from this that the contractor was at liberty to •order material from a striking factory, and then rely upon this clause for its protection. A duty rested upon it to perform the contract if possible, and to exercise care^ diligence and skill to this end. All that was obtained was immunity from the general' "rule of law which refuses to accept inevitable and unforeseen accidents as an ■excuse for the non-performance of an absolute' agreement. (Harmony v. Bingham, 12 N. Y. 99.)

The- facts are that the contractor made a contract with the Columhia Iron and Steel Company in March, 1892, providing generally for the furnishing of material of the sort required later in performing this contract; that on July seventh, the day when the contract *45under consideration was signed,, the president of the -Oarrere Works: wrote the Columbia Company notifying it, and directing the forwarding of material; and that he learned a day or so. later that the Columbia Company’s men were not at work, but took no immediate steps to place the order elsewhere. He testifies: “ Previous to the signing of the contract with the Puck people, on July 7th, we had received bids, or tried to receive bids, from other concerns, and there was no concern that I would have liked to have entrusted that work with at that time, outside of one, which were so busy that I did not think it advisable to go to them, especially as I had the promise from the vice-president and the manager of this mill that if the contract were given to them it would take precedence over all others.” It also appears that this was the year of the great Homestead strike, and that the beam manufacturers were having a good deal of difficulty in supplying orders. Milliken, who had been engaged in the business of iron construction for fifteen years, testified that it took anywhere from six to eight weeks in August and September to fill an order, on account of the demand during the summer months. But the precedence which had been promised to the Oarrere Works resulted in a delivery within two weeks from the time the works of the Columbia Company started up. IVIilliken’s estimate was probably conservative for this particular year. He was .asked : “ Were you delivering continuously at that time ? ” (August, September and October, 1892) and he replied: “ Ho, we were not delivering continuously, * * * Some of our orders we were back, three months on.” It also appeared by the evidence of the secretary of the Columbia Company that not until the end of July or the beginning of August was the situation at the works regarded as serious. The company’s contract with the labor association had expired June thirtieth^ at which, time the men quit work, but negotiations as to wages were pending and it was expected day by day that a settlement would be reached. All of this evidence was practically uncontradicted. The fair inference from it is, that the contractor was justified in the belief that it would get just as prompt and satisfactory attention by leaving the-order where it was originally placed as by attempting to place it elsewhere. It follows that the contractor, while exercising reasonable. prudence and diligence in executing its contracts, was prevented by “ strikes.” The only substantial claim of failure to perform was *46the delay in the delivery of the beams, and for this the contractor was not liable under a fair interpretation of the contract.

The view we. have taken renders it unnecessary to discuss the testimony in detail, or to consider at length the other question presented by counsel. Our conclusion,' however, is that the delay in furnishing the beams caused by the strike was immaterial in view of the tardiness of the. mason, and that the acts of the appellants constituted a waiver of the delay. Our judgment might well rest upon these grounds, quite independent of the view we have taken of the strike clause. We have also examined the record as to .the minor details of the woik, notably the mullions, lintels and" shutter-eyes, and we think that the decided weight of. evidence favors the view that the contractor was not in default in any of these matters.

The judgment should be affirmed, with costs.

Van Beunt, P. J., Ruhsey, O’Brien and Ingraham, JJ., concurred.

Judgment affirmed, with costs.

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