53 F.R.D. 642 | S.D.N.Y. | 1971
This is a motion to dismiss and for summary judgment pursuant to Rules 12(b) (6) and 56(b) of the Federal Rules of Civil Procedure.
The following facts are undisputed:
The principal debtor, Commemorative Publications, Inc. (“Commemorative”) contracted with The Curtis Publishing Company (“Curtis”) on November 18, 1965 for the printing of a book to record the visit of Pope Paul VI to New York City in October 1965.
In consideration for Curtis’ agreement to print the book and to extend credit to
Beyond that, the facts are in dispute.
The defendant maintains that the contract between Curtis and Commemorative was for the sale of goods and that a four-year statute of limitations applies.
Resolution of the statute of limitations question raised by the defendant’s motion depends upon the proper characterization of the transaction between Curtis and Commemorative.
Pollock, C. B., writing in Clay v. Yates, 156 Eng.Rep. 1123, 1125 (1856), noted that
“the true criterion is, whether work is the essence of the contract, or whether it is the materials supplied. My impression is, that in the case of a work of art, whether in gold, silver, marble or plaister, where the application of skill and labour is of the highest description, and the material is of no importance as compared with the la-bour, the price may be recovered as work, labour and materials. No doubt it is a chattel that was bargained for, and, if delivered, might be recovered as goods sold and delivered, still it may also be recovered as work, labour and materials. Therefore it appears to me that this is properly a contract for work, labour and materials.”
In that case a printer was suing for the price of a treatise he had been commissioned to print. The character of the transaction was a crucial question because the agreement was oral. If the contract was for the sale of goods, the Statute of Frauds requiring a writing would deal a fatal blow to the printer’s action.
The defendant criticizes the plaintiff’s use of cases which take contracts for special manufacture out of the category of contracts of sale. These cases, the defendant argues, reflect an attempt to remove such contracts from the rigorous operation of the Statute of Frauds, which, as formerly read, made no exception for special manufacture.
As long as the distinction, however arbitrary, exists between classes of contracts the Court must sort out the relevant factors in order to characterize the contract in issue.
This Court, citing Clay v. Yates, supra, has found that where the customer furnished the paper stock, the manuscript, artwork, drawings, photographs, linotype composition, cover dies and jackets, a contract to print and bind a book was not a contract of sale within the meaning of the Sales Act. Wm. H. Wise & Co. v. Rand McNally & Co., 195 F.Supp. 621 (S.D.N.Y.1961). It is undisputed that Commemorative “engaged photographers and writers and made all the other necessary preparation for producing this book.” (Sheridan Affd. ¶10.) Commemorative “was formed to function as publisher of this book and to hold title to all pictures and text produced in connection with it.” (Sheridan Affd. p.)
The paper used in the printing of the book
That interpretation is fair and applicable to this ease. The Court must determine the character of a transaction from the totality of the facts. Perlmut-ter v. Beth David Hospital, 308 N.Y. 100, 107, 123 N.E.2d 792, 796 (1954). Curtis was engaged to print the signatures. The binding was a separate operation done by another firm. Unfortunately, these and other salient and undisputed facts referred to earlier in this opinion form an insufficient basis for determining the extent, if any, to which Curtis did more than just print the signatures for the venture. The defendant Sheridan’s affidavit is replete with reference to Curtis’ participation in promoting the production of the book. According to that affidavit, of the three people who conceived the venture, two were the owners and officers of a firm that was an exclusive New York sales representative for Curtis (¶4). Curtis allegedly was to provide financing for the book. Curtis would pay the Archdiocese of New York a percentage of the book’s gross sales and would give to the Archdiocese final control over the pic
Because matters essential to a characterization of the contract are not beyond dispute as presented by the motion papers, the Court denies the defendant’s motion to dismiss and for summary judgment.
So ordered.
. New York and Pennsylvania have adopted § 2-725 of the Uniform Commercial Code. Uniform Commercial Code § 2-725 (McKinney 1964) ; 12A Pa.Stat.Ann. § 2-725.
. C.P.U.R. § 213(2) (McKinney 1966) ; 12 Pa.Stat.Ann. § 31.
. Curtis does not take issue with the defendant’s assertion that the guaranty agreement is subject to the same statute of limitations as is the underlying contract. McMullen v. Rafferty, 89 N.Y. 456 (1882).
. Williston, The Law of Sales in the Proposed Uniform Commercial Code, 63 Harv.L.Rev. 561, 575 (1950).
. Uniform Commercial Code § 2-201(3) (a) (McKinney 1964) ; 12A Pa.Stat. Ann. § 2-201(3) (a).
. See Duesenberg & King, Sales and Bulk Transfers Under the Uniform Commercial Code § 2.02 [4], n. 28 (1966).
. Curtis actually printed copies of a signature, a “large sheet printed with four or a multiple of four pages. When folded it becomes a section of the book.” The American Heritage Dictionary of the English Language, 1204 (1969). The signatures were sent to another firm for binding. The stipulation referred to earlier indicates that Commemorative was separately indebted to the binder in the amount of $30,846 50 plus interest (Stip. ¶ First).
. Since the action is not dismissed the assertions of the plaintiff that its Pennsylvania judgment destroys the defense of the statute and that, in any event, it has been waived must similarly await trial.