
    Clark v. Adams et al.
    
    
      (Superior Court of New York City, General Term.
    
    May 7,1888.)
    ■Contract—Construction—“Available” Commodities.
    Plaintifi agreed to manufacture for defendants, out of materials to be furnished by_ the latter, “available phosphoric acid. ” Defendants sold some of the acid to a third person, who, on examination, refused to accept it because of its inferior quality, but he afterwards took it at a reduced price. Held, that the acid, being salable, was “available,” within the meaning of the contract.
    Appeal from special term.
    Action by Edward Clark against Edwin W. Adams and others for an accounting. Plaintiff agreed to manufacture “available phosphoric acid” out of materials to be furnished by defendants, and the profits of the sales were to be divided. Judge O’Gorman, on the hearing at special term, delivered the .following opinion: “The rights and obligations of the parties to this action must be governed by the terms of the written agreement between them. Theparol testimony offered on behalf of the defendants, as adding to or affecting-the meaning of that agreement, and admitted conditionally by the court, must-be rejected. Corse v. Peck, 102 N. Y. 515, 7 N. E. Rep. 810. By the terms of that written agreement the plaintiff, Clark, contracted to manufacture certain material supplied him by the defendants into ' available phosphoric acid.’' There is nothing in that agreement providing that the phosphoric acid, when thus manufactured, should possess any quality other than that meant and described by the word ‘ available.’ On delivery by plaintiff to defendants of' the phosphoric acid, when thus manufactured by him, defendants sold it to a. firm doing business in Bedford, Mass., at a price agreed on between them. This firm, on examination of the phosphoric acid, refused to take it at the agreed price, on the ground that it was not equal in quality to a sample shown them, and was inferior in character. Subsequently, however, they agreed intake it on a reduction of the price, and did take it, and paid for it the price as reduced. This reduction of price was made with the assent of both the plaintiff and the defendants. This sale of the phosphoric acid is sufficient proof that it was ‘ available ’ for one, at least,-of the chief purposes for which the parties plaintiff and defendant made their agreement. There is no evidence that the inferiority in the phosphoric acid, as manufactured by the-plaintiff, was the result of any negligence on his part. On the contrary, it appears that its inferiority was the result of inherent defects in the condition of the material itself, before the process of its manufacture into phosphoric-acid was applied. The loss caused by the reduction in the selling price should, in my opinion, have been borne jointly by the plaintiff and the defendants, in. proportion to the amounts invested by each of them, and such was, I think,, the manifest intention ofthe written agreement between them. - The plaintiff should therefore have judgment in his favor, granting him the relief demanded in his complaint, with costs. ” Defendants appeal.
    Argued before Sedgwick, O. J., and Freedman, J
    
      Jacob F. Miller, for appellants. Hugh A. McTernan, for respondent.-
   Per Curiam.

The reason assigned by the trial judge for refusing to dismiss the complaint was erroneous, but the ruling was correct. The action, was for an accounting, and the record shows that the counter-claim, to which, the plaintiff made no reply, was allowed to the defendants in the computation-of the amount for which the plaintiff had judgment. As to the merits, the-opinion delivered by the learned judge at special term is correct. The record discloses no error, and upon the whole case it appears that substantial justice-has been done. Judgment affirmed, with costs.  