128 N.Y.S. 22 | N.Y. App. Div. | 1911
Appeal from judgment for defendant. The plaintiff is a manufacturer of dress patterns, and the defendant for some years was its agent for the sale of patterns at Evansville, Ind., acting under written contracts. One of such contracts was dated April 10,1905, and was for the term of two years from the date thereof, and from year to year thereafter, until the agreement should be terminated. It was further provided that either party desirous of terminating the contract must give the other three months’ notice in writing within thirty days after the expiration of any contract period, the agency
The latter contract required the defendant to receive and pay for what are termed “Standard Fashion Sheets” to the amount of 62,500 per annum. These were to be distributed free, by way of advertisement. Defendant desired a reduction in the number of these sheets which it must purchase, and in January, 1906, wrote to plaintiff suggesting that the amount should be decreased to 42,000, which would result in a saving to defendant of $125 per annum. Plaintiff consented to this reduction and prepared a new contract, similar in all respects to the former one, except as to the number of fashion sheets to be purchased by defendant annually. A dispute arose between the parties as to what date this new contract should bear, defendant insisting that it should be dated April 10, 1905, the date of the old contract, and plaintiff insisting that it should be dated February 5,1906, the date of its execution, so that it would run until February 5,1908. After some correspondence, which resulted in no agreement, defendant was visited in March, 1906, by one Lang-tree, then secretary of plaintiff, who testified that after some conversation defendant, by its president, agreed to accept the new contract dated February 5, 1906. Smith, the defendant’s president, testified to the conversation with Langtree but gave quite a different version of it, and in response to leading questions categorically denied the statement that he had finally agreed to accept the contract dated February 5, 1906. On March 17, 1906, plaintiff wrote to defendant referring to the correspondence relating to the date of the contract, and saying that it had delayed writing further until it should hear from Mr. Langtree. The letter concluded: “We now have the report and learn that it is satisfactory to you to let the contract stand as drawn. We therefore are returning your copy.” This copy
The judgment and order should he reversed and a new trial granted, with costs to appellant to abide the event.
Ingraham, P. J., McLaughlin, Laugiilin and Miller, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.