
    De Graff & Palmer, Appellant, v. Mayer L. Mayper, Morris S. Mayper, Isidor Mayper and Samuel Mayper, Doing Business as a Copartnership Under the Name of M. Mayper & Sons, Respondents.
    (Supreme Court, Appellate Term,
    November, 1909.)
    Cause of action — Splitting cause of action.
    Contracts — Interpretation of contract — General rules of interpretation — Mode of ascertaining intention.
    Former adjudication — Adjudication as bar to all matters which might have been litigated — Splitting cause of action — Contracts in general— Separate sales.
    The interpretation of an. oral contract depends upon the intention of the parties as shown by their words and acts.
    Where, at the time of the making of a series of oral contracts for the manufacture and sale of a number of varieties of a certain material, each item was separately discussed and the quantity, color and price separately fixed but no time of delivery was stated, the act of defendant in refusing, after deliveries had been made under all the contracts, to accept any further deliveries on any contract constituted a breach of all the contracts; and the plaintiff could combine all its causes of action for breach of the contracts in one complaint, or could bring a separate suit for the breach of each contract.
    Where a contract for the manufacture and sale of material is entire, the element of delivery or payment in separate instalments is not sufficient to show that the parties intended to enter into separate contracts for each instalment.
    Where, in an action in the Municipal Court of the city of New York for breach of contract to deliver certain of the goods, the complaint set forth three separate causes of action, and the defendants, separately answering each cause of action, expressly admitted that the items sued for constituted separate contracts and brought asn affirmative action upon each of said items in the character of a counterclaim, their claim, in an action by plaintiff in the City Court upon other items, that all the items of all the contracts constitute but one contract and the judgment in the Municipal Court action is a bar to the City Court action, is untenable.
    Appeal by the plaintiff from a judgment of the City Court of the city of Mew York, rendered in favor of the defendants, after a trial before the court without a jury.
    
      Wherry & Morgan (William H. Wherry, Jr., of counsel), for appellant.
    Feltenstein & Rosenstein (Moses Feltenstein, of counsel), for respondents.
   Lehman, J.

The plaintiff and the defendants, on December 4, 1906, entered into a contract or a series of contracts for the manufacture and sale of a number of different varieties of garter webbing. Each item was apparently separately discussed, and the quantity, color and price separately fixed. The time of delivery was apparently to be a reasonable time after the order was given; and the plaintiff claims that, in regard to each item, the question of what constitutes a reasonable time could depend upon different circumstances. During the discussion of the order, the plaintiffs salesman would enter each item on a memorandum, as soon as the terms as to that particular item were completed; and, at the close of the whole discussion, he delivered the memorandum to the defendants.

Apparently, after this transaction, the parties had other dealings, and made other similar contracts in April, 1907. Deliveries were made under all these contracts; but, in 1908, disputes arose between the parties, and the defendants apparently refused to take any further deliveries from the plaintiff upon any contract. In August, 1908, the plaintiff began four separate actions against the defendants for breach of these various contracts. Two of these actions were begun on August 26, 1908, in the Oity Court of the city of Mew York, and two were begun on August 27, 1908, in the Municipal Court of the city of Mew York; and the Municipal Court actions were reduced to judgment before the City Court actions came to trial. While the act of the defendants in refusing to accept any further deliveries on any contract constituted a breach of all the contracts, it gave rise to separate causes of action on each contract; and the plaintiff could combine these causes of action in one complaint, or it could bring separate suits on each of its causes of action. On the other hand, where the contract was one and indivisible, but the goods were deliverable and the purchase money payable at different times, the breach gave rise to only a single cause of action.

It appears that in this case the cause of action is for a breach of the contract to pay for one of the items contained in the memorandum of December 4, 1906, and that the plaintiff has already recovered a judgment for the defendants’ breach of their agreement to pay for two of the other items contained on that memorandum. If the memorandum was a statement of the terms of one entire contract, then the plaintiff has attempted to split up a single cause of action and the judgment of the Municipal Court is a bar to this action.

In all questions of the interpretation of a contract, we must endeavor to give effect to the intent of the parties as shown by their words or their acts. In the recent case of Pakas v. Hollingshead, 184 N. Y. 211, 214, the court stated with approval the rule: “As was said by Judge Bradley in Brock v. Knower (37 Hun, 609), the fact that the property was deliverable and the purchase money payable at different times in the future did not necessarily deprive the contract of the character of entirety or make it other than a single one in respect to all the goods embraced in its terms.” (Italics are mine.) I believe the learned trial justice has overlooked the important word “ necessarily.” The court has simply decided that, where the contract is clearly an entire contract, the element of delivery or payment in separate instalments is not sufficient to show an intention to enter into separate contracts for each instalment. In this case, however, the alleged contract was not only for goods deliverable and payable in instalments, but it was also for goods of different qualities and description, the terms for each item being separately arranged. Sor was the alleged contract ever reduced to a single formal written agreement, for the memorandum in evidence is only a contemporaneous memorandum, made by the plaintiff, stating each item separately; and, according to the salesman’s testimony, each item was entered on the memorandum as shown when it was agreed upon. Under these circumstances, I should have great difficulty in any event in holding that the parties intended to enter into one entire'and indivisible contract for all the goods.

Since, however, the interpretation of the contract depends in the last analysis upon the intention of the parties, if these parties have themselves placed a clear interpretation upon it by their acts, we are bound to follow their own interpretation. In the Municipal Court action, the pleadings were verified. The complaint sets forth three separate causes of action. The first.cause of action alleges a contract for 90 gross of Aveb, made on the 4th day of December, 1906; the second cause of action alleges a contract for 120 gross of web made on the same day; the third cause of action is for a contract made on another day. The answer in correct form answers separately each cause of action; and, in paragraph second, the defendants expressly admit that they ordered, on the 4th day of December, 1906, 90 gross of web, and in paragraphs three, four and five set up a counterclaim for the plaintiff’s failure to deliver these 90 gross of web; while in paragraph sixth they expressly admit that they ordered, on the 4th day of December, 1906, 120 gross of web and in paragraphs seventh, eighth and ninth set up a counterclaim for failure to deliver the 120 gross of web. At the conclusion of.the plaintiff’s case, they moved to dismiss separately on each cause of action. Having, therefore, not only expressly admitted that the items constituted separate contracts and so gave rise to separate causes of action, but also brought affirmative actions upon each item in the character of a separate counterclaim, they cannot in law or equity now claim that all the items constituted one contract and that the judgment in the former action is a bar to this action.

The judgment should, therefore, be reversed, with costs, and judgment directed for the plaintiff, in the sum of $591.39, with interest from March 24, 1908, together with costs, pursuant to the stipulation.

Gildersleeve and Seabury, JJ., concur.

Judgment reversed, and judgment directed for plaintiff, with costs, pursuant to stipulation.  