
    Charles Kaufman et al., Respondents, v. Thomas Canary et al., Appellants.
    (Supreme Court, Appellate Term,
    September, 1897.)
    J. Practice — Admission by defendants that there is some evidence of their partnership.
    Where the defendants,' although moving at the close of the plaintiffs’ case to dismiss the complaint upon the ground that there is no proof of the partnership of the defendants, fail, at the close of the entire case, to renew the "motion and do not ask for the direction of a verdict in their favor, and further move to1 dismiss the complaint upon the ground that there is no preponderance of evidence establishing the existence of "a .copartnership between them, they concede that there is some evidence of that fact and cannot upon appeal' insist that there was an utter absence of such evidence.
    
      2. Contract to manufacture — Printed matter not furnished —Delivery.
    An oral executory contract for the manufacture of certain advertising placques, upon which, if desired, the vendors were to place certain printed matter, if supplied by the vendees, no place of de- ■ • livery being specified', is, 'upon the refusal" of the vendees to accept any further placques, sufficiently .performed by the vendors when • they notify the vendees that the placques, although not containing any printed matter, are ready for delivery and offer to deliver them at a place to be designated by the vendees.
    Kaufman v. Canary, 20 Misc. Rep. 726, affirmed.
    
      Appeal from" an affirmance by the General Term of the City Court of New York, of a judgment for the plaintiffs, which was rendered at Trial Term, in their favor.
    Action to recover the agreed purchase price upon a sale of merchandise to the defendants as copartners.
    Joseph C. Rosenbaum, for appellants.
    David Gerber, for respondents.
   Bischoff, J.

This action was brought to recover the agreed purchase price of 1;500 placques, designed for advertising purposes, alleged to have been manufactured by the plaintiffs’ firm at the instance of the defendants, as copartners, and purchased by the latter. The complaint averred the plaintiffs’ readiness to deliver the placques and the defendants’ refusal to accept and pay for them; and the only defense interposed was a general denial.

Upon the trial, it appeared from abundant evidence that the contract, an oral one, was made in August, 1895; that it was entered into by the plaintiffs and one MacGeachy, the latter assuming to act for the defendants in that behalf; that the price agreed upon was $80 for each, 1,000 placques, and that the entire lot was to be delivered at such times, at such, places, and in such quantities as the defendants should require, the delivery to be wholly required before February 1, 1896. It further appeared, as we construe the testimony, that at the defendants’ option, each of the placques was to be provided with certain printed matter to be supplied by the plaintiffs, but the tenor and text of which the defendants were to communicate with their several requisitions; that one thousand of such placques, printed as directed by the defendants, were actually delivered to them, but not paid for; and that the remainder of the placques was laid aside- by the plaintiffs to abide the defendants’ future directions. The case was submitted to the jury with instructions that the measure of the plaintiffs’ recovery was the agreed price of the placques after deducting the •cost of the printing upon those remaining undelivered, and a verdict for $510, exclusive of interest, was found for the plaintiffs.

Judgment was entered for the plaintiffs upon the verdict, and this is assailed upon this appeal upon the following grounds only, viz.: (1) That the contract alleged in the complaint was not shown because of the absence of sufficient evidence of the defendants’ copartnership at the time the contract was entered into; (2) that the plaintiffs were not entitled to recover the contract price because the placques remaining undelivered were not completed —■ that is to say — provided with the printed matter herein-before alluded to; and. (3) that the plaintiffs were 'not, in this ac^ tion, entitled to recover for the placques actually delivered because such_delivery was not alleged in the complaint. The first ground is not presented by proper exception, and the "other grounds prove, upon examination, unavailable to .the appellants,. and untenable.

True it is. that at the close' of the plaintiffs’ case, a motion for dismissal of the complaint was made upon the specific ground that there -was no evidence, tending-to show the copartnership of the defendants, and to the denial of the motion an exception was "taken. But at the close of tire entire case, there was no- motion for the direction of a verdict; neither was the previous motion renewed, the motion for dismissal of the" complaint then being based, upon the alleged absence of a preponderance of the evidence to establish the copartnership, thereby conceding that there was some evidence. Thus the point now made; that there was an uttér absence of such evidence, was not called to1 .the attention of the trial court. Upon the question' of preponderance we are concluded by the judgment of affirmance in the court below (Meyers v. Cohn, 4 Misc. Rep. 185), and the failure to renew the' motion for a dismissal of the complaint, or to ask for the- direction of a verdict upon the ground first urged, was equivalent to a concession that when the case was about fo be acted upon by "the jury, there was then sufficient evidence to warrant such submission. Meyers v. Cohn, supra; Sullivan v. Brooks, 10 Misc. Rep. 368; Loewenthal v. Copland, 18 Misc. Rep. 6; Kafka v. Levensohn, id. 202.

Until the defendants had elected to have the placques provided with the advertising matter, and had notified the plaintiffs of such election and communicated the text of the matter to be printed to them, it cannot reasonably be asserted that anything remained to be done upon the plaintiffs’ part towards the completion' ot the contract. Hand v. Shaw, 18 Misc. Rep. 1, 5. As matter of fact, no such election was had, no such notice given or communication had. On the contrary, the evidence was to the effect that the defendants, disputing the contract, had absolutely and equivocally refused to receive the placques when the plaintiffs offered to deliver them, excepting the one thousand admittedly delivered, and- received.. In no sense, therefore, can the. plaintiffs be said to have failed to do all that the contract required of them, and no sufficient ground appears why the plaintiffs ought. not to' have recovered, the whole of the agreed price. In our opinion, the trial justice’s instructions to the jury, to credit the defendants with the cost of the printing for the placques undelivered, gave the defendants an advantage to which they were not fairly or legally entitled. However, as regards this appeal, we have to do only with the defendants’, the appellants’, grievances.

It remains for us to notice the last ground urged for reversal of the judgment appealed from.

The complaint proceeds as in an action to recover the agreed price upon full performance by the vendors of the contract of sale upon their part, retaining possession of the placques because of the defendants’ refusal to receive them when tendered or offered to be delivered. Dustan v. McAndrew, 44 N. Y. 72, 78. Upon this theory all of the placques were the property of the defendants and subject to their direction as regards the delivery thereof. The partial delivery was not inconsistent ther ewith. Neither - -could the nonallegation of such partial delivery have impaired the plaintiffs’ right to recover the agreed price for the entire number of -placques so long as the plaintiffs, as regards those of which they retained possession, had fully performed the contract of sale upon then* part. The complaint alleged what - in legal intendment was tantamount to an allegation of -the delivery of all the placques. It nowhere appeared that the parties had stipulated for any particular place of delivery. The place of delivery, therefore, was either the place of business of the plaintiffs, or a place remaining to be designated by the defendants, and the allegations sustained by the proof were that the plaintiffs, before the commencement of the action for the purchase was brought, had notified the defendants that the placques were ready for delivery, and offered to deliver them at a place to be designated by the latter. That, under the circumstances, the plaintiffs were entitled to demand and to have the price agreed is no longer a debatable proposition, at least in this state (Bement v. Smith, 15 Wend. 493; Hunter v. Wetsell, 84 N. Y. 549); and in so far as it appeared upon the trial that the defendants did in fact receive one thousand of the placques, the variance, for aught that appears, was not prejudicial to them, and so was properly disregarded by the trial court as immaterial. Code Civ. Pro., § 539.

The judgment should be affirmed, with costs

Daly, P. J., and McAdam, J., concur.

Judgment affirmed, with costs.  