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First Department, April, 1910.

[Vol. 137.

and defendant yielded to the extent of one per cent on the rents reserved during the first two years.

There is no allegation or proof that the lease was taken in the name of Kurzrock for Seleznick, except as it is alleged that he was to have and did take one store in bad faith, and with a view to depriving the plaintiff of his commissions, which would have presented another question. (See Freedman v. Havemeyer, 37 App. Div. 518; Miller v. Vining, 112 id. 304; Waters & Son v. Rafalsky, 134 id. 870.) On the contrary, as has been seen, the plaintiff alleges that he procured Kurzrock to make the lease. There is no evidence to sustain this allegation. According to his own testimony he met Kurzrock by chance once at Seleznick's store, and was there introduced to him by Seleznick, and he was aware of the fact that Seleznick was negotiating with Kurzrock originally for one of the three stores, and later as an associate or member of one syndicate to take all of the unrented stores, and the subject was discussed between him and them; but this is as far as the plaintiff had any connection with Kurzrock. The lease is under seal, and the defendant even if it had knowledge, which its officers deny, that Kurzrock was taking the lease for the benefit of others as well as himself, it could only look to him for performance, and neither party could be heard to say as against the other that others were interested. (Spencer v. Huntington, 100 App. Div. 463; affd. on opinion below, 183 N. Y. 506.) It is quite likely that the defendant might not have made the lease had the plaintiff not induced Seleznick to one of its officers, but he was introduced as a prospective tenant for one of the stores for conducting the retail jewelry business therein, and although he subsequently occupied one of the stores under Kurzrock, such occupancy was not according to his original intention, or of the same nature, or in consummation of the original negotiations.

Counsel for the defendant, at the close of the plaintiff's case, duly moved for a nonsuit upon the ground that the evidence neither established the cause of action alleged nor any cause of action. This was denied, and an exception was duly taken. It was renewed at the close of the evidence, and an exception was again duly taken to a like ruling. We are of opinion that the case did not require submission to the jury, and that the court erred in denying these

App. Div.]

First Department, April, 1910.

motions. But if the evidence was sufficient, in any possible view of it, to take the case to the jury the verdict would be clearly against the weight of the evidence. Moreover, the verdict could not be sustained for the reason that the court declined a request, duly made by defendant, to charge "that if the plaintiff Meyer introduced Mr. Seleznick to the defendant as a prospective tenant for one store, and Mr. Seleznick afterwards applied to the defendant either on his own behalf or for himself and others for a lease of a number of stores, this would not give the plaintiff any claim for commissions." That request, considered in the light of the complaint, which is not for the recovery of a commission for procuring a tenant for one store, but for procuring this lease to Kurzrock for the nine stores, is a sound proposition, and should have been charged, and the exception to the refusal to so charge was well taken.

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

INGRAHAM, F. J., MCLAUGHLIN, MILLER and DOWLING, JJ, concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.

HARGRAVES MILLS, Appellant, v. WILLIAM S. GORDON, Respondent.

First Department, April 8, 1910.

Sale - bailment locatio operis faciendi — contract to manufacture goods -intention of parties - pleading - damages.

Contracts must be construed according to the intention of the parties, if their intention be clear, and if not, then as they have shown it by practical construction.

Where the plaintiff, a manufacturer of cotton cloths, made a contract with the defendant, in the business of buying rough cotton goods and converting them into a finished product, whereby he agreed to sell to defendant a quantity of cloth of specified quality, the defendant to furnish silk to be woven into the cotton warp, and the contract contains appropriate words for a contract of sale

First Department, April, 1910.

[Vol. 137. and none of the provisions in respect to workmanship which would appear in a contract of employment, and the acts of the parties show that they considered it a sale, and the warp furnished by plaintiff was greater in bulk than the silk furnished by defendant, the transaction constitutes an executory contract for the manufacture and sale of the cloth and not a bailment, although the silk and yarn which defendant furnished, or was to furnish, were of greater value than the warp furnished by plaintiff.

It is not essential that plaintiff should characterize the transaction as a sale in his pleadings, if he set forth the facts, since the nature of the contract is a question for the court.

Damages for the loss of use of the looms and the wages of the weavers during the time the looms were awaiting silk, which the defendant failed to furnish, may be recovered in an action for breach of contract.

MILLER, J., dissented.

APPEAL by the plaintiff, Hargraves Mills, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of June, 1909, upon the verdict of a jury.

Wallace Macfarlane, for the appellant.

Walter D. Clark, for the respondent.

LAUGHLIN, J.:

The appeal was taken originally from an order denying plaintiff's motion for a new trial, but thereafter a stipulation was made and filed withdrawing the appeal from the order, and it was therein stipulated in behalf of the plaintiff that the evidence was sufficient to sustain the verdict on every question submitted, and that the only question it would seek to review on the appeal was the "question of law as raised by the exceptions, namely, whether the transac tions between the parties constituted a sale or a bailment." The record, therefore, was prepared to present only the material evidence bearing upon that question of law.

The plaintiff recovered a verdict for $951.72, which it claims is inadequate and resulted from erroneous rulings made by the trial court with respect to the nature of the action by which it was improperly limited in its recovery. The plaintiff is a corporation organized under the laws of Massachusetts, and it has a plant for the manufacture of cotton cloths at Fall River in that State. The

App. Div.]

First Department, April, 1910.

defendant was a merchant engaged in business in the city of New York under the name of W. S. Gordon & Co. He was known as a converter, and the business he conducted consisted in buying gray cloth made of cotton and silk, and cotton in the rough as it comes from the looms, and of having it converted into a finished product, and selling it to jobbers and to retail dealers, and occasionally, but not usually, he furnishes some of the material to be manufactured. The action is based on a contract in writing, and is brought to recover $4,019.81, being the purchase price of 850 pieces of cloth known as cotton cloths, but consisting in part of silk, containing 40,198 yards, which were delivered to and accepted by the defendant, and $1,351.54, the value of mercerized yarn and silk purchased by the plaintiff for the defendant, and used in the manufacture of said goods, and the freight charges paid thereon, and $1,859.26, being for a balance over and above the sum of $911.56 paid to apply thereon, alleged to have been caused by defendant's failure to furnish silk in accordance with the contract to be used in the manufacture of the goods, which resulted in stopping the operation of many of the plaintiff's looms, making in all the sum of $7,230.61, for which amount with interest thereon from May 15, 1902, plaintiff demanded judgment. The first item of damages claimed only is involved in the appeal and the single question presented is whether the contract was, as claimed by the plaintiff, an executory contract for the manufacture and sale of the cloth, or whether, as claimed by the defendant, it was a contract by which the plaintiff was employed to manufacture the goods which were in part furnished by the defendant, on which theory it would involve a bailment of the goods so furnished by the defendant and the performance of work, labor and services thereon by the plaintiff. The court ruled upon the trial and instructed the jury as matter of law that the contract was not a contract for the manufacture and sale of the goods, but was for a bailment of goods and for the performance of work, labor and services thereon, and permitted the jury to allow defendant's second counterclaim on that theory. The plaintiff duly excepted to these rulings.

The plaintiff employed a broker to negotiate the contract for it, and it was made by the broker for both parties in the name of the treasurer of the plaintiff. The contract was as follows:

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First Department, April, 1910.

[Vol. 137.

"NEW YORK, January 10, 1902.

"Sold to W. S. Gordon & Co., 256 Church St., N. Y.

"For acct. of Seth A. Borden, Treas., Fall River, Mass.

"6000 to 7000 pieces, about 50 yards each, woven double, first

quality, silk filling, lappett dots.

"Width, 28 inches. Style, 718.

"Count, 88/92.

"60's warp combed, silk filling.

"Price, 10 cents.

"Terms, 10 days.

"Delivery, f. o. b. mill.

"About 500 pieces weekly commencing first week in February, all by May 1st.

"Mill furnishing warp and paying for weaving, clipping and baling. "Buyer to furnish silk on quills for filling, as required to run the looms, and to pay for mercerized yarn, 60's-2 ply, to be bought by mill for dot.

"Buyer takes seconds up to 5% at contract price.

"D. O. TATUM, Broker.

"J. C. TATUM."

The parties accepted the contract as made for them by the broker, and it continued in force until on or about the 1st day of May, 1902, when the defendant gave notice to the plaintiff that he elected to terminate it and would receive no further goods thereunder. The plaintiff acquiesced in this notice and ceased to manufacture under the contract and did not ship any more goods. The plaintiff at this time had on hand some silk furnished by the defendant which had been manufactured or partly manufactured into goods but no question concerning that is involved on the appeal. The provisions of the contract are all consistent with plaintiff's contention and most of them are inconsistent with defendant's theory of it. We find appropriate words for a contract of sale throughout the contract. It is stamped as a contract of sale by the use of the words and phrases "Sold to," "For acct. of," "price," "terms," "Delivery," "Buyer,” "first quality," and "buyer takes seconds up to 5% at contract price." It is said that a printed blank was used and that some of the terms were printed; but some of them were not printed and were typewritten, and followed and carried out the same theory as

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