13 Misc. 45 | New York Court of Common Pleas | 1895
The National Cyclopedia of American Biography was in process of publication by James T. White & Co., plaintiff’s assignors, when the defendant agreed in writing to take six volumes of the complete series of twelve, “which is to contain the biographical sketch and marginal vignette portrait of-, at the price of ten dollars per volume, the subscription price per volume payable on delivery, upon the terms stated above.” These terms were erased on the execution of the contract, and are not now apparent in the actual agreement. Whether the six volumes to be taken by defendant were to be paid for on the delivery of each or of all is not quite clear upon the face of the paper in its altered and imperfect condition; and, as but four volumes were delivered, it is a question if the action be not premature,, because brought before complete performance by the plaintiff’s assignors. Waiving this objection, however, and addressing ourselves to the point in litigation, we observe that the agreement is at once incomplete and ambiguous. It is incomplete in not specifying the portrait and biography to be contained in the volumes bespoken by the defendant, and is ambiguous in not designating which six volumes of the twelve constituting the entire set the defendant stipulated to take. The first defect is supplied by the testimony of the publishers, who admitted that the portrait and biography intended were the portrait and biography of the defendant.
The actual and the only question in controversy is, what particular volumes did the defendant agree to take? The plaintiff says the first six; the defendant says the six commencing with that which contained his portrait and biography. The volumes delivered were the first four issued; and in neither were the portrait and biography of the defendant inserted; nor is it apparent that they would be present in any of the first six volumes. Evidently, the moving consideration with the defendant in subscribing for the work was the publication in it of his portrait and biography; and it is equally manifest that the volume containing them was the one he particularly desired. But, if he got that, it would seem a matter of indifference to him whether the volume preceded or followed the others. It is impossible, therefore, to ascertain, from the face of the contract and the surrounding circumstances, the specific subject-matter of the agreement between the parties. If this be so,—if there be an inexplicable ambiguity as to the subject of the contract,—then there is no contract, and the action is defeated, because the justice was authorized to find that the defendant tendered a return of the delivered volumes. Sutter v. Vanderveer, 122 N. Y. 652, 654, 25 N. E. 907.
Judgment affirmed, with costs. All concur.