
    Bowman, Thompson & Company, Limited, Respondent, v. Joseph F. Fuerst and Others, Appellants.
    
      Order of arrest — right thereto depending upon the construction of a, writing — order not reversed on appeal.
    
    Where the right to maintain an action and an order of arrest depends upon the construction to be given to an agreement which may depend upon the course of business between certain parties, upon an appeal from an order denying a motion to vacate an order of arrest granted therein, the construction of such agreement should not be attempted, and the order should be affirmed.
    Appeal by the defendants, Joseph F. Fuerst and others, from an order of the Supreme Court, made at the New York Special Term on the 24th day of January, 1894, and entered in the office of the clerk of the county of New York, denying the defendants’ motion to vacate and set aside an order of arrest.
    Tlie amended complaint in this action alleged the conversion by the defendants of certain moneys, the property of the plaintiff. The agreement referred to in the opinion was as follows :
    “ The following agreement has this tenth day of February, 1892, been made and entered into between the undersigned, viz.: Mess. Bowman, Thompson & Co.,'Ltd.; Lostock Graham, near Northwich, in England, and Mess. Fuerst Bros. & Co., of the city, county and State of New York, U. S. A.
    “No. 1. Messrs. Bowman, Thompson & Co., Ltd., appoint Messrs. Fuerst Bros. & Co. their sole agents in the United States and Canada., and give Messrs. Fuerst Bros. & Co. sole control for the sale in the United States and Canada of the chemicals manufactured by Messrs. Bowman, Thompson & Co., Ltd.
    “No. 2. Messrs. Bowman, Thompson & Co., Ltd., agree to sell to Mess. Fuerst Bros. & Co., and Messrs. Fuerst Bros. & Co. agree to purchase from Messrs. Bowman, Thompson & Co., Ltd., five thousand (5,000) tons of 48$ and of 58$ ammonia alkali as good in quality and test, and as uniform, as any soda ash made by the ammonia process now being sold in the American market.
    “ No. 3. The price for the 5S$ alkali in casks free of charge to be five pounds ten shillings (£5.10 | ), less 1$ per ton of 2,240 pounds f. o. b. Liverpool or f. o. b. Birkenhead, in the option of Messrs. Fuerst Bros. & Co., and to he understood for actual net weight delivered. The price for the 48$ alkali to lie proportionately less, in accordance with usage.
    “ No. 4. Shipments of these five thousand (5,000) tons to begin not later than the first of March, 1892, from Liverpool or Birkenhead, and to be made in equal monthly lots during 1892.
    “ No. 5. It is agreed that the payment for the first shipments (up to and not exceeding in all 500 tons) shall be cash in 60 days after arrival in the ports of the United States and Canada. The payments for the balance of the five thousand (5,000) tons to be cash in 30 days from each shipment from Liverpool or Birkenhead after right and true delivery in the ports of arrival.
    “No. 6. It is also agreed that Messrs. Bowman, Thompson & Co., Ltd., guarantee not to sell their products to any one in England, or anywhere else, unless it be with a strict guarantee that the goods are not to be shipped directly or indirectly to the United States or Canada. ' Messrs. Bowman, Thompson & Co., Ltd., also agree to communicate to Mess. Fuerst Bros. & Co. the contents of all letters and advices which they may receive from interested business friends in the United States and Canada, direct or indirect, and that they refer all this correspondence or communications to Messrs. Fuerst Bros. & Co. for their action.
    “ No. 7. It is further agreed that Messrs. Bowman, Thompson & Co., Ltd., will reserve annually for the American and Canadian markets additional quantities of at least five thousand (5,000) tons and up to ten thousand (10,000) tons of Soda Ash, which Messrs. Bowman, Thompson & Co., Ltd., will send on consignment to Messrs. Fuerst Bros. & Co. in successive shipments for best possible sale, for which Messrs. Fuerst Bros. & Co. shall receive a commission of two and a half (24$) per cent for selling, in addition to the money expended for the cost of duty, delivery, warehousing, insurance and any other incidental expenses whatsoever, with the exception of office and traveling expenses. Messrs. Fuerst Bros. <& fío. further agree to guarantee the accounts for all sales made for and on behalf of Jlessrs. Bowman, Thompson d Co., Ltd., for a further commission of one {if)per cent which Messrs. Bowman, Thompson ds Co., Ltd., agree to pay for said guarantee. The payments for the goods so consigned to be made after sale and right a/nd 1/rue delivery to purchaser.
    
    
      “ No. 8. It is also understood, that Messrs. Bowman, Thompson & Co., Ltd., agree to advertise continuously and sufficiently during the continuance of this contract, their products in trade papers in the United States and Canada, and the cost thereof to be borne exclusively by Messrs. Bowman, Thompson & Co., Ltd. Such advertisements shall, in substance, also mention Messrs. Fuerst Bros. & Co., as sole consignees and sole agents in the United States and Canada.
    “No. 9. This agreement to commence on the date hereof, and to terminate on the 31st day of December, 1893. And both parties to come to a mutual arrangement on or before the 31st day of March, 1893, in regard to the continuance of this contract beyond the 31st day of December, 1893. The terms and conditions for the year 1893 to be the same in every respect as for the year 1892, with the exception of the prices, which are mutually to be agreed upon hereafter.
    “ No. 10. It is also agreed that the goods shipped to the United States and Canada are to be branded with a special brand, which brand shall embody the words of ‘Fuerst Bros. & Co., New York, sole consignees.’
    “ No. 11. Messrs. Bowman, Thompson & Co., Ltd., further agree to save, bear and keep harmless Messrs. Fuerst Bros. & Co. from any and all losses sustained by them by reason of the non-fulfillment by Messrs. Bowman, Thompson & Co., Ltd., of this contract,, so far as regards the quality of their various shipments.
    “ No. 12. Messrs. Bowman, Thompson & Co., Ltd., agree, so tar-as they are able, to give every assistance possible to Messrs. Fuerst Bros. & Co., with a view to the successful disposal of their products, and Messrs. Fuerst Bros. & Co. likewise agree to exert all possible energy and use every means in their power to further the interests of Messrs. Bowman, Thompson & Co.
    “ In witness whereof, Messrs. Bowman, Thompson & Co., Ltd., and Messrs. Fuerst Bros. & Co., have hereunto set their respective corporate and firm names this tenth day of February, 1892.
    “ [seal.] FUERST BROS. & CO.
    « [seal.] p. pro. BOWMAN, THOMPSON & CO., Ltd.
    “ Walter Thompson,
    “ Director.”
    
      
      J. M. Dittenhoefer, for the appellants.
    
      James Dv/nne, for the respondent.
   Per Curiam :

As tbe right-to maintain this action and the order of arrest granted herein both depend upon the construction to be given to the agreement entered into between the parties to this action, and as this construction may depend upon the course of business of the parties under it, which course of business can only be satisfactorily established upon the trial, we think that upon this appeal we should not attempt such construction, and, therefore, affirm the order appealed from, with ten dollars costs and disbursements.

Present — Yan Brunt, P. J., O’Brien and Follett, JJ.

Oi’der affirmed, with ten dollars costs and disbursements.  