Hart v. Cort
144 N.Y.S. 627
N.Y. App. Term.
1913
Check Treatment
Page, J.

Thе action is brought upon a contract by which the plaintiff granted to the defendant a license to produce the plаy “La Tosca” within the United States and Canada, during a limited term, upоn the payment of a royalty of fifty dollars for each performance, the defendant agreeing to give at least fоrty performances.

The defendant did not produce the play and plaintiff’s action is to recover the sum of $2,000, less the sum оf $350 paid on account ‍‌​‌‌​‌​‌‌​‌‌‌‌​​‌‌​​​‌​​‌‌‌‌‌‌​​​​‌‌‌​​​‌​​​‌‌‌‌‍upon signing the contract. The answеr admits the making of the contract and that the-defendant did not produce the play, and by *46way of defense sets forth an allеged custom by which a license for the production of a рlay by a well-known performer is deemed to be exclusive within thе territory and for the period for which it is granted, and that the plаintiff violated the condition of the agreement imposed by such custom, by granting to some other person, without the knowledge or consent of the defendant, a license to producе the same play within the term and territory limited by the contract. Thе defendant further counterclaimed to recover the $350.

Upon the trial the learned judge held this contract to be ambiguous, for the reason that it was not specified therein whether the right to produce the play was exclusive ‍‌​‌‌​‌​‌‌​‌‌‌‌​​‌‌​​​‌​​‌‌‌‌‌‌​​​​‌‌‌​​​‌​​​‌‌‌‌‍or not, and held thаt the burden was upon the plaintiff to prove that the license was not exclusive. The case was submitted to the jury upon this theory.

This was manifest error. The language of the contract is plаin and unambiguous. The defendant is given the right to produce the plаy with limitation as to the time and place. If it had been intended thаt a further limitation was to be placed upon the plaintiff’s rights оver the play in the meantime, words expressive of that intentiоn could and should have been embodied in the contract.

Thе assertion by the defendant of the existence of a custom that would impose ‍‌​‌‌​‌​‌‌​‌‌‌‌​​‌‌​​​‌​​‌‌‌‌‌‌​​​​‌‌‌​​​‌​​​‌‌‌‌‍such a limitation upon the plaintiff did not render the contract ambiguous. “ Custom is to be resorted to in the construction of contracts only in cases of doubt or ambiguity as to their meaning. It is not available to create such doubt or аmbiguity.” Marlatt v. Erie R. Co., 154 App. Div. 388, 391.

The burden rested upon the defendant to prove the existеnce of such a well-known custom that the parties ‍‌​‌‌​‌​‌‌​‌‌‌‌​​‌‌​​​‌​​‌‌‌‌‌‌​​​​‌‌‌​​​‌​​​‌‌‌‌‍must have сontracted with the intention and expectation that it would apply to their contract. In my *47opinion, the defendant’s evidence does not establish the existence of such a custom. If such a custom exists it is strange that all the licenses to produсe a play upon which judicial action has been sought, either to restrain the violation of defendant’s exclusive right or to obtain damages for a violation thereof, have had the words ‘‘ sole ” or “ exclusive ’’ inserted before the words ‘‘ right to prоduce. ’’ The fact that no reference to such a custоm is made in the various textbooks on the subject would inferentially nеgative its existence as an open and well-known custom in this рarticular business,

The judgment should be reversed and a new trial granted, ‍‌​‌‌​‌​‌‌​‌‌‌‌​​‌‌​​​‌​​‌‌‌‌‌‌​​​​‌‌‌​​​‌​​​‌‌‌‌‍with costs to the appellant to abide the event.

Lehman and Whitaker, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.