ELECTRO-TINT ENGRAVING CO.
AMERICAN HANDKERCHIEF CO.
Goodale & Hanson (E. C. Crowley, of counsel), for appellant.
Thomas Conyngton, for respondent.
Argued before INGRAHAM, McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.
Plaintiff moved at Special Term, Part 1, for an order granting judgment for the sum of $4,078.89, with interest from December 1, 1907, and also for the sum of $2,851.16, with interest from January 1, 1908, admitted by the answer to be due to the plaintiff, and directing that the action be severed, and that it be continued as to the remainder of the claim set up in the complaint, with a like effect as to all subsequent proceedings as if it had been originally brought for the remainder of the claim. The motion was denied, and from the order entered thereon this appeal is taken.
[115 N.Y.S. 35] The complaint alleges that on or about the 25th day of July, 1907, the plaintiff and defendant, at Philadelphia, entered into a contract whereby the plaintiff agreed to furnish the defendant 3,000,000 three-colored process pictures, and the defendant agreed to pay the plaintiff for the same according to the conditions set forth in exhibits annexed to the complaint and made a part thereof. In the first of these letters defendant wrote:
" Kindly accept our order for 3,000,000 three-colored process pictures under the following conditions: *** That the 3,000,000 pictures will be divided equally into nine subjects.*** Proofs are to be furnished us for our approval before the actual work of printing is begun. That the delivery shall be as follows: Two million to be delivered during September, October, November, and December, 1907, at a rate of 500,000 each month, and at a rate of not less than 100,000 per week. That the remaining 1,000,000 pictures are to be ordered out by January 31, 1908. That, if we see fit, the delivery of the pictures can be changed, and the entire 3,000,000 ordered out by December 31, 1907, instead of January 31, 1908.*** That the price of the first 500,000 pictures is to be $6.10 per M., and the price for the remaining 2,500,000 pictures is to be $5.50, both prices f. o. b. Philadelphia. That the work is to be first-class in every particular and to be up to proofs approved by us."
To which the plaintiff answered:
" It gives us great pleasure to acknowledge your valued favor of the 24th inst., containing order for 3,000,000 pictures. The conditions named therein are entirely satisfactory to us, except that you mention trichromatic paper. We do not intend to use trichromatic paper, except on the first edition of 500,000. We have arranged for a paper that will be, if anything, superior to the trichromatic.*** We know that this will be entirely satisfactory to you, as you are only interested in the finished product, which we will uniformly maintain.*** Thanking you for the order," etc.
Plaintiff wrote another letter the same day:
" We haven't mentioned the question of terms on the order for the 3,000,000 pictures, but wish to say that our idea of payment would be that you send us a check each month on receipt of each month's lot of pictures, the entire order to be paid on or before January 31, 1908."
To which the defendant answered:
" We have your letter *** accepting our order for 3,000,000 pictures. We note your exception in reference to trichromatic paper, and would state that as long as the paper used is equally as good as trichromatic it will be satisfactory.*** In reference to the terms stated in your letter, we understand them as follows: That whereas there will be three or four shipments each month of pictures, that the total number of pictures received during that month are to be paid for before the end of each month; that is, that pictures received each month are to be paid for before the expiration of said month. The terms as above stated are perfectly satisfactory to us."
The complaint proceeds to state that the plaintiff in all respects duly performed all the conditions of said contract on plaintiff's part until the 9th day of January, 1908, when the defendant refused to pay the plaintiff installments then due for deliveries of pictures received by defendant in November and December, and further abandoned said contracts, and refused to perform the same, and prevented the plaintiff from continuing to perform the same thereafter.
" Fifth. That on said 9th day of January, 1908, the defendant had received from the plaintiff in November, 1907, 874,930 pictures, which the plaintiff had delivered under said contract, and the sum of $4,812.10 became due therefor [115 N.Y.S. 36] from the defendant to the plaintiff on the 1st day of December, 1907, which sum has not been paid, except $733.21 thereof. That on said 9th day of January, 1908, the defendant had received from the plaintiff in December, 1907, 518,400 pictures, which the plaintiff had delivered under said contract, and the sum of ...