¶1Plaintiffs’ assignor entered into a written contract with the defendants, on March 14, 1903, by the terms of which the defendants purchased of plaintiffs’ assignor 2,500 rolls of matting, to be delivered in quantities of 500 rolls per month beginning in the following December. Of these rolls 500 were delivered in December, 500 in January, and 430 in February, all of which were accepted and paid for by the defendants. Acceptance of the balance was refused. The contract contained the following clause: “ This order is placed ‘ on ’ condition not to sell any of the samples we have selected to any of our Philadelphia customers ; ” and, upon the trial, the only substantial contention made by the defendants was that such condition had been violated. The trial judge charged the jury that, if they should find from the evidence that, any of the patterns selected by the defendants had been sold by plaintiffs’ assignor to any of the Philadelphia competitors of the defendants, they must find for the defendants, “ even though only a small quantity of such rolls were sold.” At the request of the *344plaintiffs, this charge was modified by charging that the jury must find that there had been a “ substantial violation of the contract.” To this latter charge an exception was taken by the defendants and a reversal of the judgment is asked for upon the ground that such charge was substantial error. To determine this question it must be ascertained whether or. not there was any evidence showing, or from which the jury would be justified in finding, that plaintiffs’ assignor had sold any similar patterns to the defendants’ competitors. The contract between the parties contained the number of each pattern of matting to be furnished to the defendants. One of the defendants testified that, in May, 1904, he purchased matting from the firms of Waldman & Fastman and Kramer & Kan and that the pattern of such matting so purchased was similar to the patterns agreed to be furnished by plaintiffs’ assignor and specified in the contract. This matting was billed by the said firms to the defendants by numbers and was in numbered wrappers and aggregated the sum of $20 only in amount. Neither the numbers of the matting contained in the bill or upon the wrappers correspond with those named in the contract; and, although the color of the matting is also specified in the contract, it was not shown that any of the matting so purchased was of similar color. Three bills of matting from the firm of Wilmerding, Morris & Mitchell, under dates of April 23d and 25th respectively, to said firms of Waldman & Fastman and Kramer & Kan were received in evidence. One of these bills was for two rolls of No. 50 and sixteen rolls of No. 8647 matting and the other two bills were for three rolls of No. 9032 and five rolls of No. 9017 matting. None of these numbers are contained in the contract. These bills contained the statement that they were from the “department of G. 0. Akawo” (plaintiffs’ assignor). The purchase of a trivial amount of matting, in May, 1904, which is not identified by number, color, or in any other way except by the general statement of the witness that it is of like pattern, accompanied by proof of a sale to defendants’ vendors of matting, in April, 1904, from the department of the plaintiffs’ assignor, this last sale again unidentified in any way as being similar to the matting *345purchased by the defendants in May, or to the matting named in the contract, is no evidence that plaintiffs’ assignor violated the terms of his contract by selling to defendants’ competitors in business mattings of like pattern to that named in the contract. Non constat, but that the mattings purchased by defendants in May, 1904, may have been a portion of the 1,430 rolls delivered to the defendants by plaintiffs’ assignor in December, 1903, and January and February, 1904, which in due course of business reached the firms from whom defendants purchased. This defense was evidently an afterthought, as in none of the several oral or written communications between the parties leading up to the absolute refusal on the part of the defendants to complete the contract, was this reason urged as a ground for defendants’ refusal to fulfill its terms. There being no evidence of a violation of the contract on the part of plaintiffs’ assignor, the court would have been justified in directing a verdict for the plaintiff; and the request of the plaintiffs’ counsel to charge, which was complied with by the court, does not constitute error.
¶2Judgment should be affirmed, with costs.
¶3Judgment reversed and new trial ordered, with costs to appellants to abide event.