tion and not a municipal corporation is meant, and the general usage in our statutory language, which makes a distinction between corporation and municipal corporation, supports this construction.

Section 2 of the act does not make it illegal to contract for a supply of water from a source outside the municipality; what it forbids is the obtaining of water from an outside source by means of pipes and conduits by a corporation within the limits of the municipality without the consent of the board having charge of the public water-supply within the municipality. No penalty is imposed for a violation of this section. It is not declared in specific terms illegal, and the only remedy given by the act is an action at law or in equity to enjoin the violation of its provisions. A corporation in a case within this section which chooses to make such a contract may perhaps be exposed to the risk that it never can obtain the water contracted for by reason of inability to secure the necessary consent of the municipality within whose limits it is doing business, but that consent is not made a condition precedent to the right to contract. It may even be doubtful whether the legislature has the constitutional right to make a contract for the purchase of water dependent for its validity upon the consent of a third party. The right to prohibit, as this statute does, the obtaining of water by means of pipes and conduits, if it is to be justified, must rest upon the fact that ordinarily those pipes and conduits are placed in the public streets of which the municipality has control. Whether the legislature can go further and prohibit one who buys water outside the municipality from bringing it within the municipal limits by means of pipes and conduits laid wholly on private property, is a question that does not now call for discussion. If such an exercise of power is to be sustained, it must be upon the theory that the legislature has the right to give a municipality the monopoly of the supply of water within its bounds-a right which was sustained in the case of a private water company. New Orleans Water Works Co. v. Rivers, 115 U. S. 674. Such a monopoly could probably only be sustained in a case where the munici

pality itself stood ready to furnish an adequate supply. Fortunately, however, we are not now called upon to pass upon this question of legislative power. Section 2 of the act of 1907 applies only to municipalities maintaining or operating a public water-supply. A water-supply necessarily connotes an adequate supply-a supply which will enable the consumer to obtain water from the municipality. Anything less than that would be, as to the particular consumer, no supply at all. That this must have been the legislative intent is made clear by the language immediately following, which speaks of the "supply of water furnished by the municipality." This must mean the supply which the municipality itself stands ready to furnish. Unless we adopt this construction, the statute would operate to deprive consumers of this prime necessity at the will of the local board, for they cannot get it of the municipality within whose limits they are because it is unable to supply them, and they cannot get it elsewhere, except possibly in barrels or bottles, because the local board refuses its consent. The facts of the present case make the statute inapplicable. On April 22d, 1908, when the contract before us was made, the town of Kearny was unable to furnish any supply whatever to the railroad at the Meadows shops-a most important point for the railroad to obtain water; so important apparently, under any existing arrangements, that a failure to obtain an adequate supply at this point might paralyze the interstate traffic over hundreds of miles of track. The town had a public water-supply at that time, bought from the water companies; whether it was adequate for the necessities of the railroad is a disputed point, but immaterial, since the town had no pipe by which it could supply the water. The meadows shops were several miles from the Kearny water system. The right to supply the railroad had been expressly reserved by the water companies in their contracts with Kearny, and the necessary pipe line belonged to the companies, or one of them. It was not until December 28th, 1908, that the water company waived its reserved right to sell water to the railroad and consented that the pipes of the company might be used as part of the

public water-suppy system of the town of Kearny for the purpose of delivering water therefrom to the Pennsylvania railroad at the meadows shops or elsewhere. This was more than eight months after the contract between Jersey City and the railroad company, now questioned. It was, however, only five days after Kearny had resolved to take legal measures to prevent the introduction or continuance of any water-supply to the railroad from any municipality or water company other than the supply provided by the town. The agreement between the water company and Kearny of December 28th was the result of a proposal made by the water companies to the town on December 23d and accepted by the town on that day. It is evident that agreement was the result of an attempt on the part of the water companies to regain, indirectly, through the medium of the town, the right to supply the railroad, which they had lost in 1906. The situation then is this: When the contract between Jersey City and the railroad company was made, Kearny was unable to supply the railroad with any water whatever. As to the railroad company, Kearny did not maintain or operate a public watersupply. Her operations were confined to a part of her territory quite remote from the Meadows shops. The act of 1907 did not therefore apply and the contract is not vitiated. We need go no farther.

All that is before us for review is the resolution and agreement of April 22d. They were within the power of Jersey City to adopt, and the proceedings are therefore affirmed, with costs.

EDMUND LISSBERGER v. DAVID M. KELLOGG ET AL.

Submitted March 19, 1909-Decided June 7, 1909.

1. An agent to buy goods abroad is under a duty if he cannot procure the goods desired to so inform his principal; and if he buys an inferior grade of goods and ships them as a compliance with the order, he is liable to his principal for damages.

2. The rule contained in section 14 of the Sale of Goods act (Pamph. L. 1907, p. 311) that if the sale be by sample, as well as by description, it is not sufficient that the bulk of the goods correspond with the sample if the goods do not also correspond with the description, is merely an enactment of the common law rule as it existed before the statute.

3. Where goods are sold by description for the purpose of resale and do not answer the description, the vendee may recover in addition to his anticipated profits the damages which he is under obligation to pay to his sub-vendee when those damages are such as may reasonably be supposed to have been in contemplation of both parties at the time they made the contract as the probable result of its breach.

On rule to show cause.

Before GUMMERE, CHIEF JUSTICE, and Justices SWAYZE and PARKER.

For the plaintiff, Tennant & Haight.

For the defendants, Edward S. Savage (Frederick H. Kellogg on the brief).

The opinion of the court was delivered by

SWAYZE, J. The action is for damages caused by the failure of the defendants to deliver wool in accordance with the contract between them and the plaintiff. The plaintiff is a wool merchant in New York; the defendants are wool brokers and dealers at Buenos Ayres in the Argentine. In the summer of 1905 the plaintiff ordered some thirty bales of wool, of which ten bales were to be Lincoln, ten bales onefourth blood and ten bales three-eighths. The order was accepted, but thirty-five bales were shipped instead of thirty. The invoice described the wool as composed of Lincoln onefourth blood, three-eighths, one-half and five-eighths, and the specifications described them as ten bales Lincoln, eleven bales one-fourth blood, ten bales three-eighths Lincoln, four bales one-half Lincoln. This wool arrived in New York December 26th, 1905. Prior to its arrival and on December 5th the plaintiff ordered defendants to buy two hundred bales, one

half of which was to be three-eighths and half of which was to be one-fourth, and on December 18th ordered them to buy one hundred bales, half of which was to be three-eighths and half one-fourth. These orders were duly accepted and the wool shipped in January, arriving in New York in February. The two lots of two hundred and one hundred bales were sold in advance of their arrival by the plaintiff to the Cleveland. Worsted Mills of Cleveland, Ohio, and shipped through to them directly from the steamer in bond. The wool proved to be inferior in quality to the description. The case was tried upon the theory that the plaintiff could only recover in case he was dealing with the defendants as principals. It was apparently supposed by counsel that there could be no recovery if the defendants were the brokers or agents of the plaintiff, and the trial judge charged the jury that if they were acting as brokers the defendants were entitled to the verdict. It is now insisted that there was no evidence which would justify the finding that the defendants were principals, or, if that is not so, that the weight of the evidence is so decidedly in favor of the view that they were brokers that the verdict should be set aside. We find in the sworn statements made by the defendants to accompany the invoices evidence which would justify the conclusion that they were contracting as principals and as vendors. There is persuasive evidence to the contrary, but we cannot say that the weight preponderates on that side to such an extent that we ought to disturb the verdict. We do not mean to be understood, however, as expressing approval of the view adopted at the trial that the defendants were not to be held liable in damages if they were acting as brokers. Their contract in that case would indeed be different from the contract between a vendor and purchaser, but it has been held that where agents are to buy goods abroad they are under the duty not only of buying as cheaply as possible and of shipping the goods when bought, but must also inform their principal if they are unable to procure the goods required and to take reasonable care to send correct information. They may, if they are acting as brokers and are unable to procure the goods desired, so report