144 N.Y.S. 627 | N.Y. App. Term. | 1913
The action is brought upon a contract by which the plaintiff granted to the defendant a license to produce the play “La Tosca” within the United States and Canada, during a limited term, upon the payment of a royalty of fifty dollars for each performance, the defendant agreeing to give at least forty performances.
The defendant did not produce the play and plaintiff’s action is to recover the sum of $2,000, less the sum of $350 paid on account upon signing the contract. The answer admits the making of the contract and that the-defendant did not produce the play, and by
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 that 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 plain and unambiguous. The defendant is given the right to produce the play with limitation as to the time and place. If it had been intended that a further limitation was to be placed upon the plaintiff’s rights over the play in the meantime, words expressive of that intention could and should have been embodied in the contract.
The 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 ambiguity.” Marlatt v. Erie R. Co., 154 App. Div. 388, 391.
The burden rested upon the defendant to prove the existence of such a well-known custom that the parties must have contracted with the intention and expectation that it would apply to their contract. In my
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.