Savage

I concur in the judgment. The specification referred to in the contract commences: “All the east-iron work to be made of the best quality of pig iron.” If iron in pigs is graded or classified in the trade—the classes being generally recognized among dealers, foundrymen, and other workers in iron—I think the specification called for the first or best class, independent of the circumstance that there happened to be none of that class in this market when the contract was entered into or the work done. There seems to have been no evidence as to such recognized classification, and while the evidence on the part of the plaintiff is not very satisfactory, yet the testimony of at least one of his witnesses tended to prove that the best quality of iron—that “sought for by all machine shops and foundries for good work”—was used in the rejected castings. Under the circumstances, as it seems to me, the interests of justice will be subserved by a new trial, and I am. not disposed to interfere with the action of the learned judge who saw and heard the witnesses.

Action to recover the amounts claimed to be due for work done and materials furnished in the alleged performance of two contracts.

The case was tried without a jury, and the court found, (1) that the plaintiff had performed his first contract for which he had been paid, except the sum of two hundred and ten dollars, which was due and unpaid at the commencement of the action; (2) that the plaintiff had not performed his second contract, except in part,- for which he had been paid three thousand five hundred dollars, and as there had not been full performance, there was nothing due on the contract. Judgment was accordingly entered in favor of the plaintiff, for the balance due upon the first contract; but afterward the court below, on a motion for a new trial, upon a settled state *139 ment of the case, set aside its judgment and finding, and ordered a new trial, from which the defendant appealed.

The record of the case, upon which the new trial was ordered, shows that, on October 17, 1873, the plaintiff, by contract in writing, undertook to make and furnish the defendant, within forty-six days after the date of the contract, twelve cast-iron columns, twelve molded ring-caps and…