102 N.E. 564 | NY | 1913
The plaintiff, a domestic corporation, seeks to recover from the defendant, a foreign corporation, the amount the plaintiff paid in discharge of judgments recovered against it by Ray Tompkins. At the commencement of the action in which the judgments were recovered *429
the plaintiff gave The Norcross Brothers Company, the appellant here, notice and opportunity to defend the action and of its claim to indemnity from it against any judgment Tompkins might recover. The Norcross Brothers Company did not assume the defense. Tompkins secured a judgment which was affirmed in the Appellate Division (Tompkins v. Lamb,
Tompkins recovered his judgment against the plaintiff here upon the ground that it violated the contract between them which provided that it would for a named sum furnish and erect, at a designated place, a monument and a headstone "to be executed in best white Westerly granite." The monument and headstone actually furnished and erected by the plaintiff were made by the defendant here from granite quarried at Troy, New Hampshire. Tompkins asserted, after they were erected, that the contract contemplated and required that the granite should be quarried at Westerly, Rhode Island, rejected them and brought his action. J. R. Lamb defending the action claimed that the expression "best white Westerly granite" might mean granite from the vicinity of Westerly, Rhode Island, or from the quarries of The Norcross Brothers Company in Massachusetts or New Hampshire. The jury decided that the contract obligated J. R. Lamb to furnish and erect the monument and headstone made from granite quarried at Westerly, Rhode Island.
The defendant here manufactured the monument and headstone for the plaintiff. In case the duty, as between the parties here, rested primarily upon the defendant to *430
make them from granite quarried at Westerly, Rhode Island, so that it was under the obligation to the plaintiff that plaintiff was under to Tompkins, it is, under the notice and opportunity to defend the Tompkins action, barred by the judgment in that action from contesting here the violation of the contract between it and the plaintiff and the damages recoverable by the plaintiff. The principle is well settled that, by notice and opportunity to defend an action, the party notified becomes a party thereto, so as to be concluded in any subsequent litigation between the same parties as to all questions determined in the action and material in the subsequent litigation. (Carleton v. Lombard, Ayres Co.,
It remains to determine whether or not the evidence proved, as a matter of law, that the defendant was obligated to deliver to plaintiff the articles cut from granite quarried at Westerly, Rhode Island. The obligation, if it existed, was contractual and is to be found in the letters which passed between the parties, and the additional evidence. The letters are many and cover a period of several months. They are peculiar to this action and a *431
detailed statement and critical analysis of their contents would not be useful. For the decision of this appeal and the purposes of a new trial in the action, it is sufficient to state that they permit different inferences and fair-minded and reasonable men may disagree as to their meaning and effect and the real contract between the parties. They are within the rule that when the sense in which the words of a written instrument are used, or the sense in which the promisor had reason to believe the promisee understood them, is determinable from the relation of the parties, facts apart from it, and the surrounding circumstances, it must be found and fixed by the jury. (Kenyon v. KnightsTemplar M.M. Aid Assn.,
The judgment should be reversed, and a new trial ordered, with costs to abide the event.
CULLEN, Ch. J., GRAY, WERNER, HISCOCK and CUDDEBACK, JJ., concur; MILLER, J., not sitting.
Judgment reversed, etc.
