
    
      KNAGGS et al., Respondents, v. R. E. GOULD CO., Appellant.
    
    
      (Supreme Court, Appellate Term.
    
    
      February 4, 1907.)
    
    
      Appea from Municipal Court, Borough of Manhattan Eighth District. Action by Roy S. Knaggi and otbers against the R. ID. Gould Company From a judgment for plaintiffs' defendant ap peals. Reversed, and new trial ordered. Alex' ander Thain, for appellant. Adolph M. Schwari (ID. Merriam Ragg, of counsel), for respondents~
    
   BLANCHARD, J.

The plaintiffs made i written offer to furbish to the defendant 10,00( copies of a certain booklet, including covers for a certain price, and should an extra kind oi cover be required an additional charge was Ic be made. This offer was accepted by the de fendant. Some time after' the plaintiffs de livered to the defendant about a dozen copiei of the booklet with covers, and later from SOC to 1,000 also with covers. Instead of deliver jug the balance of the order to the defendant the plaintiffs sent them in sheets without coven and unbound to a bindery, to be finished at thE expense of the defendant. They contend thai they were sent to the bindery pursuant to direc tion of the defendant. This the defendant de nies, and claims that the plaintiffs did not com ply with the terms o,f their contract, in thai they failed to deliver the booklets completE with covers. The evidence in the case fails tc disclose any change in the terms of the writ' ten contract as to covers. The booklets whict were delivered to the defendant were bound~ and it is difficult to escape the conclusion thai the entire order, when delivered, were to havE covers and bindings. The defendant so testifies and we think the preponderance of evidence u in favor of her contention. The evidence showi that the plaintiffs agreed to deliver the book' lets with covers,, and that they failed in thc main to keep their agreement. Since the fail ure to comply with the arreement is not explain' ed by the evidence, it follows that the judgmeni rendered for the plaintiffs, which involved a din missal of the defendant's counterclaim, should be reversed. Judgment reversed, and new trial ordered, with costs to appellant to abide th event. All concur.  