Garte v. Souvenir Post Card Co. , 136 N.Y.S. 181 ( 1912 )

LEHMAN, J.

[1] The plaintiff brought suit for the agreed price of postal cards delivered to the defendant. The defendant admitted the cause of action alleged in the complaint, but counterclaimed for damages alleged to have been suffered by the failure of plaintiff to deliver certain lithographic stones in accordance with a certain contract annexed to the answer. At the trial the defendant showed the making of the contract on the 27th day of March, 1907, and a demand in writing for the stones on the 27th day of March, 1908. The trial justice, upon this proof, dismissed the. counterclaim on the merits, holding that, under, the contract, the defendant was not entitled to receive these stones upon demand. The interpretation of the contract, therefore, must be decisive of the questions arising on this appeal.

The contract is in the form of a letter written by the defendant to the plaintiff, and approved in writing by the plaintiff. It purports to be an agreement to older not less than 5,000,000 postal cards within one year from the plaintiff at agreed prices. It provides that:

“These prices are f. o. b. cars at Leipsig, and do not include any charge for the lithographic stones. These are to be charged for at the market rate, should they leave your possession; otherwise, prices include all expenses. It is understood that all photographs which we furnish you with and all engravings made therefrom are to be our property, and kept by you for our exclusive use. All photographs are to be returned to us as soon as you are through with them and with the first shipment of cards made therefrom. * * * You are to be responsible for the safe and proper care and custody of all engravings and stones left with you. * * * Your responsibility for said stones and engravings is to continue as long as they remain in your care, and you are only to be relieved therefrom upon their permanent removal from you, which can only be on our written order from the home office. You are at once to make out a complete list of our subjects, showing on which stones they are to be found. * * * We are to go over this list, and indicate which subjects are to remain in your care, and which are to go elsewhere on their delivery, and you are to bill us such stones as go elsewhere on their delivery, at the market price. The stones used on the remainder are not to be billed to us until we have them removed. Of this list from 600 to 800 stones are to be left in your care during the year; also nine-tenths of those made during the year.”

We are all agreed that, under the terms of this contract, the stones upon which the engravings were to be placed were not intended to be the absolute property of the plaintiff. The contract clearly provided that the plaintiff was to retain them only if the defendant did not remove them, and that the plaintiff’s sole right, if the defendant demanded their removal at the expiration of the contract, was to be paid their market value. The clauses of the contract quoted above are inconsistent with any absolute property right in the plaintiff.

[2] The counterclaim of the defendant fails, however, to allege any tender of the market value of the stones, or of any ability or willingness to pay for them, and the proof to sustain the allegations of the complaint is also perhaps deficient on this point. If, therefore, the right of the defendant to demand the stones and the right of the plaintiff to payment are mutual and concurrent, then the counterclaim was properly dismissed. Pope v. Terre Haute Mfg. Co., 107 N. Y. 65, 13 N. E. 592. It seems to me, however, that these rights were not concurrent under the terms of the contract. The contract provides that terms shall be:

“Cash, less 2% per cent, within 60 days from the date of the invoice.”

This provision was intended to refer primarily to the payment for the post cards; but it is not limited to these payments, and apparently applies to all payments to be made under the contract. The contract also provides that the stones are to be “charged” for at the current market rate, and “are not to be billed to us until we have them removed,'” and the intent of the contract seems clear that the removal of the stones was to give rise to a charge to be paid at the expiration of the period of credit. Moreover, if the contract is ambiguous on this point, the practical construction placed upon it by the parties should govern, and upon this point we have the undisputed testimony that, when stones had previously been removed, the plaintiff merely sent defendant a bill.

It follows that the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event;.

SEABURY, J., concurs.