
    The Peerless Pattern Company, Appellant, v. Isidor Grabow, Respondent.
    
      Sale — contract for sale of patterns — inconsistent findings.
    
    Appeal by the plaintiff from a judgment of the Municipal Court of the . city of New York, borough of Brooklyn,.rendered on the 6th day of February, 1911..
   Carr, J.:

The plaintiff sued for twenty-nine dollars and ten cents. The defendant denied liability and counterclaimed for fifty-nine dollars. The •court awarded judgment for the defendant against the plaintiff in the sum of twenty-eight dollars and ninety cents and costs. To reach this result the court must have found in favor of the plaintiff for the full amount of its claim and .in favor of the defendant for the full amount of his counterclaim. The appellant insists that these findings are so inconsistent as to foe mutually destructive. The plaintiff’s claim and the defendant’s counterclaim both arose out of the same series of transactions under a written contract which defined in'detail the mutual rights of the parties. This contract provided for the sale by the. plaintiff of certain paper patterns to the defendant for retail sale by him. The price was specified therein, and likewise the time and terms of payment for the goods. The plaintiff sued for the contract price of certain sets of patterns f urnished by it apparently pursuant to the terms of the written contract. The defendant denied liability for these patterns on the ground that the plaintiff had previously breached the contract before the delivery of the articles, which he claimed he refused to accept under the terms of the contract. By finding for the plaintiff for the full amount of its claim, there was necessarily a finding that the plaintiff had not breached its contract or that there was a waiver by the defendant of any breach and an acceptance of the goods. The basis of the defendant’s claim rested upon the terms of the contract itself. This instrument provided expressly that during the life of the contract the defendant,might return any “ discarded” patterns to the plaintiff “in exchange at even rates for other patterns to be shipped thereafter." The defendant did return some 1,160 discarded patterns, for whieh'he claims five cents each, making in all fifty-nine dollars, the amount of his counterclaim. Under the terms of the contract he was.entitled, not to five cents for each returned pattern, but to an exchange of new patterns “ at even rates ” for the old ones, and this right existed only during the continuance of the contract, and was dependent upon performance of the conditions thereof on his part, unless there had been a breach thereof by the plaintiff. The basis of his counterclaim is not that the plaintiff did not give him new patterns in exchange for the old, but that it did not pay him five cents each for the old patterns which he had returned. To get an exchange of new patterns for old, it was incumbent on him to perform his part of the contract. The trial court, by finding for the plaintiff for the full amount of its claim, necessarily found that the defendant had not performed under the contract, and that the plaintiff was not in-default. If so, there was no basis for the counterclaim of the defendant.' As the judgment of the trial court is based upon irreconcilable findings, it must be reversed and a new trial ordered, costs to abide the event. Jenks, P. J., Thomas, Woodward and Rich, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  