85 N.Y.S. 621 | N.Y. App. Div. | 1904
The plaintiff is a manufacturing company in the city of Rochester. In 1899 one J. C. Whipple of Chicago was exploiting a patent toy' riddle called the Dewey puzzle, and under date of July 1, 1899, entered into a contract with the plaintiff whereby it agreed to manufacture 300,000. of these puzzles for fifteen dollars per 1,000. Twenty-five thousand were to be completed by August twelfth and the entire order of 300,000 on or before September thirtieth of that year. A description of the samples was contained in the agreement and Whipple therein agreed to furnish six marbles of assorted colors for each puzzle box, a certain proportion to be delivered to the plaintiff at Rochester on or before August first, and the balance before August seventeenth. In case of failure to deliver the marbles “ as herein specified the putting into- the puzzles of the marbles will be forfeited.”
The puzzles were to be boxed in pasteboard cartons “ and delivered by freight, freight and cartage paid, to some address to be designated in New York City below Twenty-third Street.” The agreement further provided: “ All work as fast as finished to be held subject to the shipping instructions of the second party (Whipple), and to be' considered as property of the second party after completion. The first party agrees to hold subject to shipping orders the entire order if desired until time specified for completion.”
Under the same date a further or collateral contract was entered into between the same parties relating to the manner and time of payment. The said Whipple agreed “ to furnish the party of the first part (the plaintiff) a written guarantee from the Royal Trust Company Bank of Chicago, 111.,” and which would secure to the plaintiff the payment of the contract price for manufacturing the puzzles. The party of the first part agreed to furnish a schedule to “ be based upon verified statements from party of the first part
In compliance with this agreement the defendant wrote to the plaintiff the following letter:
“July 1,.1899.
“ Buedingen" Manufacturing Co., 90 W. Broadway, New York.
“ Gentlemen.— This bank will honor your thirty day drafts to the extent of forty-five hundred ($4,500.00) dollars, provided they are accompanied by schedules as specified in the contract between ( your company and J. C. Whipple, of Chicago, dated July 1, 1899, and providing said schedules are delivered in accordance with the terms of said contract and the other terms of the contract are complied with by you.
“Yours truly,
“ROYAL TRUST CO.”
This letter in connection with the agreements recited, constitutes the contract upon which the plaintiff planks its cause of action against the defendant. The plaintiff at once began the manufacture of the puzzles and shipped out upon the order of Whipple 30,000 to 35,000 in "lots of 5,000 or 10,000 to various places, Des Moines, la., Chicago, St. Louis, Atlantic City and New York, the last shipment being to the latter place, The goods did not meet the sale antic- ipated, and the project fell flat. It is apparent that many of the first shipments of the puzzles contained those which were defective.. Some were stored in Whipple’s barn in Chicago, and two years later were examined and witnesses testified that a large number were improperly made, the most frequent defect being the fading of the picture of Dewey on the outside of the puzzles, and often this portrait was pasted on unevenly.
Early in the shipment of the goods Whipple, either in his own name or in that of the Dewey Puzzle Company of Chicago, which wás a corporation formed by Whipple and one Riley to exploit these puzzles, informed' the plaintiff of the defects, and an extended correspondence ensued in regard to them. The plaintiff promptly informed Whipple that it had on hand a large quantity of the puzzles conforming to the agreement and offering to pay the
Again, under date of September twelfth, the Dewey Puzzle Company, in a letter to the plaintiff, say : “ The imperfect puzzles that we find will be returned to you at your expense, freight both ways, and whatever expense is incurred in sorting out these puzzles will be charged to you.”
The plaintiff replied to the first letter referred to, explaining the reason for the imperfections in the earlier shipments of the puzzles, and adding: “ The imperfect puzzles had' better be returned to us by freight, when we will have them all carefully gone over and put in proper condition. We, of course, will stand all transportation charges. We do not believe that you will find more than probably 10% of the entire lot imperfect. Whatever the amount is we will rectify.”
This was reiterated in a letter bearing date September fifteenth, the plaintiff writing: “ Whatever you find imperfect you may return to us at our expense and we will send you perfect ones in place.”
Finally, on October fifth, the puzzle company, in a long letter going over the defects complained of, undertook to rescind the agreement, advising the plaintiff it held the puzzles on hand subject to the order of the plaintiff and demanded the return of the money paid. The plaintiff had then manufactured 200,000 puzzles, the great bulk of which was in stock in its manufactory at Rochester,
On the same day the defendant received another one of the drafts from the plaintiff set out in the complaint and to which was attached the required verified statement. The defendant returned the draft to the plaintiff, accompanied by a letter saying: “Herewith we return you said draft for the reason that we have been notified by Mr. Whipple to accept no more drafts for the reason that the goods were not being manufactured and delivered according to contract.”
All the drafts which were accepted by the defendant and not paid are set out in the complaint, and the recovery of the plaintiff extended not only to the 200,000 puzzles manufactured, but to the 100,000 which were in process of manufacture less the cost of completing the sale.
The plaintiff contends that the defendant is an original promisor. The defendant on the contrary insists that its contract is one of guaranty and must be governed by the strict rules applicable to that relation. The court below instructed the jury as matter of law that the contract was one of suretyship, and we feel bound to accept that instruction as the' correct statement of the liability, of the defendant, whatever may be our views upon the subject uncontrolled by the direction of the trial court. From our interpretation of the case, however, the question is one of very little moment.
Much of the testimony given upon the trial was taken up with a consideration of the alleged defects in the puzzles. That quite a substantial percentage of the goods first shipped were imperfect in some particulars was apparent. We must, however, bear in mind that they were cheaply made, costing only one and one-lialf cents apiece; that they were a new venture and it was not intended that they should be skillfully or artistically manufactured. We think it
It is insistently urged that the plaintiff failed to comply with that part of its undertaking which required it to ship the puzzles “ to some address to be designated in New York City below Twenty-third Street.” This provision, it seems to us, was designed not to require shipments to be made to New York city, but to fix the amount of the freight charges for which the plaintiff was liable. The parties put that construction upon it because in the western shipments the plaintiff was allowed for the excess of such charges above the cost to send to New York city. The contract further provided that “ all work as fast as finished to be held subject to the shipping directions of the second party ” (Whipple), and it was to be his property “ after completion.” The delivery, therefore, was at the factory of the plaintiff, and payment was to be made by the defendant, not upon the delivery in New York or elsewhere, but when “ said puzzles have been finished and are ready for delivery.” Again, no place below Twenty-third street, in New York, was ever designated to the plaintiff. Whipple or the Dewey Puzzle Company gave shipping instructions as the contract contemplated, which the plaintiff conformed to, and it was not until the last shipment that any were ordered shipped to New York. No complaint was made that the plaintiff was disregarding its obligation by shipping wherever ordered by Whipple. The puzzles belonged to him, and he could have them sent whérever
The counsel for the appellant complains vigorously over the reception in evidence of eight letters on behalf of the plaintiff. Four of these were written by the plaintiff to Whipple or to the Dewey Puzzle Company and the others by Whipple for himself or representing the puzzle "company to plaintiff. Several of them related wholly to the bad condition of the marbles which Whipple had supplied the plaintiff to place in the puzzles. There is no controversy over this subject, for the proof shows unmistakably that many of the marbles were defective. Exhibit 14 was put in evidence by the defendant and that relates in part to the condition of the marbles. Exhibit 36, one of the alleged obnoxious letters, is replied to ¡by defendant’s exhibit 13, as is also exhibit 37. Another exhibit, 38, is a reply to defendant’s exhibit 22.. That is, the defendant insisted in. reading certain letters in evidence. This opened the door so that the plaintiff was entitled to the full correspondence bearing upon the subject discussed in. the defendant’s exhibits. The defendant having blazed the trees cannot justly complain because the plaintiff followed along in the trail marked. (Scattergood v. Wood, 79 N. Y. 263; Grattan v. Met. Life Ins. Co., 92 id. 274, 284.)
If there was anything in plaintiff’s exhibits not properly called for by the letters received on behalf of the defendant, the objectionable portions ought to have been called to the attention of the court and Undoubtedly they would have been expurgated. It seems to us as an original proposition that these letters were admissible. The contracts were between Whipple and the plaintiff. The contract of the defendant was made dependent upon these agreements. The performance of the agreement pertaining to the manufacture and shipment of the puzzles was between Whipple and the plaintiff. The puzzles were tc* be satisfactory to Whipple and the. defendant had nothing whatever to do with this part of the agreement. It was
The defendant’s exceptions should be overruled and its motion fora new trial denied, with costs, and judgment ordered for the plaintiff on the verdict.
All concurred, except McLennan, P. J., not voting.
Defendant’s exceptions overruled, motion for new trial denied and judgment ordered for the plaintiff on the verdict, with costs.