
    The New York News Publishing Co., Resp’t, v. The National Steamship Co., Limited, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 13, 1893.)
    
    •Contract—Agreement to pay in specific articles.
    A contract providing for payment in specific articles, or otherwise than in money, is converted by a refusal of performance by the party liable to pay into one for the payment of money.
    Appeal from judgment in favor o£ plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.
    Action to recover a balance claimed to be due on a contract for advertising.
    
      John Chetwood, for app’lt; James M. Smith, for resp’t.
   Parker, J.

The jury were authorized in finding, as from their verdict it must be assumed they have, that an agreement was made between the parties by which the plaintiff was to do certain advertising for the defendant, and to take its pay in tickets. The agent of the defendant attempted, but unsuccessfully, to challenge the authority of the employe McLean, who represented himself as acting for the defendant, and with whom plaintiff made the contract which it has substantially performed. _ He testified, however, that there was some conversation with" him, McLean, and tickets taken out. (It appears that, after the advertising had run for some time, steamship tickets of the value of $360 were applied for and issued to the plaintiff.) “Question. You say you never gave any authority to any one to put the advertisement in? Answer. I must have given authority to somebody to put that advertisement in, but I do not recollect it * * Isay distinctly, if I made any arrangement, it was made for tickets, a certain number of tickets, which were taken out of the office after-wards by Mr. Wood or his agents. * * * Q. Did you authorize McLean to make any bargain with the Daily News in reference to advertising? A. I don’t recollect it. I must have done it with somebody, because the tickets were taken out, so that I must have passed them at the time. * * * I must have authorized some one, but I cannot recollect who it was with, or what I said at the time, so as to be able to swear to it.” The rest of Ms testimony need not be referred to, as it is evident from that already quoted that the jury were not required to find from his testimony that McLean acted without authority.

The contract having been established, it was shown that the value of the advertising done thereunder by the plaintiff was $951.18, while it had received tickets only of the value of $360; that it had demanded the tickets of the defendant, but had been refused. Refusal of performance on the part of the defendant operated to convert its obligation into one for the payment of money. 1 Sedg. Dam., 509; Gleason v. Pinney, 5 Cow., 152; Smith v. Smith, 2 Johns., 235, 243; Brooks v. Hubbard, 3 Conn., 58. This was the view adopted by the trial court, and the exception taken to his charge intended to raise the question that there should be no recovery in money is without merit. Defendant objected to the evidence on which the recovery is founded on the ground that it was not pleaded.

The complaint merits some criticism, but it called the attention of the defendant to the contract on which plaintiff rested its right to recover. Besides, it appears that some of the testimony was taken de bene esse, so that the defendant came to the trial understanding full well the theory of the plaintiff’s action. When the testimony was offered he did not allege surprise, and, from what has been said, it is apparent that he could not well have done so. As no injustice has resulted, the complaint will be deemed amended to conform to the proofs. Judgment and order affirmed, with costs.

O’Brien and Follett, JJ., concur.  