ALBERT G. DICKINSON, Respondent,
SMITH SHELDON, Appellant.
APPEAL by the defendant, Smith Sheldon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 12th day of November, 1910, upon the verdict of a jury, and also from an order entered in said clerk's office on the same day denying the defendant's motion for a new trial made upon the minutes.
The action was commenced on the 22d day of April, 1910, to recover the contract price of certain advertising catalogues printed and published by the plaintiff and delivered to the defendant, as alleged, in compliance with the terms of a contract entered into between the parties. The defense is, in substance, that the catalogues were defective, and because of such defects were practically of no value, and did not comply with the terms of the agreement between the parties, and for that reason acceptance was refused.
Edward Harris, Jr., for the appellant.
George Fort Slocum, for the respondent.
MCLENNAN, P. J.:
The plaintiff is a printer and engraver, carrying on his business in Grand Rapids, Mich., under the name of 'Dickinson Brothers.' The defendant is a manufacturer of high-grade furniture, including show cases and office, bank and store fixtures, and is carrying on such business in the city of Rochester, N.Y. , under the name and style of the 'Rochester Show Case Works.'
On the 31st day of July, 1907, upon the solicitation of plaintiff's agent (a Mr. Hatfield), the parties entered into a contract, in writing, by which the plaintiff agreed to print and publish and furnish to the defendant 2,000 booklets or catalogues, intended for distribution among defendant's customers as a means of advertising the goods manufactured by him. It was provided by the contract that such booklets were to contain a certain number of pages of specified size, style of the covers, the paper or material to be used and the manner of binding all being specified. Such booklets were to contain printed matter (to be prepared by the defendant) descriptive of the goods manufactured by him, and were also to contain forty-two half-
tones, three by four inches, from photographs furnished by the defendant, showing or illustrating to the eye the character of the defendant's wares. The price for such 2,000 copies, including the envelopes in which they might be sent by defendant to his customers, was specified.
Subsequently, by negotiations between the parties, the order for catalogues was increased from 2,000 to 7,000 and the size of the pages was changed from four and one-half by six and one-half to six by nine inches, all at additional cost, as agreed upon, to be paid by the defendant. Before any part of the performance of the contract was undertaken by the plaintiff, his agent, Mr. Hatfield, had another interview with the defendant in which he represented to the defendant that the catalogues would be greatly improved in appearance if the photographs which, under the original contract, were to be printed in black were colored with a brown tint and such as to give them a glossy appearance; that such effect could be given and would be given by running the brown tint coloring over the black photograph. The defendant stated, in substance, that he knew nothing about such coloring process, but said he wanted the catalogues to be of the best even at the additional cost which was to be charged for such color effect, and the order for such brown tint effect was given by the defendant, provided that samples of such color work be sent to him at Rochester and that if satisfactory he would order the photographs to be so treated and pay the additional cost for such treatment. The samples were so sent and at the same time plaintiff wrote a letter to defendant in which he stated: 'We are sending you under separate cover such proofs [meaning the samples above referred to] but you must not think that the finished work will look like these, as we were anxious to get these off in a hurry and took the proofs on a jobber instead of a cylinder press. This will not carry the body of color nor finish of tone, nor are the edges of the vignette worked up carefully. We took proofs in the gloss photo effect in the brown tint and also in the blue. The brown shade is what we would suggest. Another thing we would call your attention to is the fact that in the gloss photo effect the type is run through the second time instead of being taken out as it would be in printing the catalogue.'
Upon examining the samples, the defendant ordered that the photographs to be contained in the catalogue should be treated with the gloss coloring.
It appears by the testimony of plaintiff's expert witness that the process is called a 'Gloss process. It is the printing of a cut with two impressions. First, the running of the black or color, whichever the case may be, and then putting the second color, or tint, or gloss, whichever you may call it, gloss tint, directly on top of the other color, which necessitates running it through the press in two different operations. The operation must be of a nature that requires absolute registering; that is, the sheets must be fed through and all conditions must be so that one cut will strike directly on top of the other.' The witness further said that by the term 'registering,' as used in the printer's art, is meant the exact covering of the first impression ...