
    Reynolds Card Manufacturing Company, Resp’t, v. New York Bank Note Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 18, 1895.)
    
    Pleading—Proof—Variance.
    Where it is alleged in the complaint that the contract sued upon was entered into about, the first day of September, 1887, and the evidence shows that it was entered into in the following February, it is not a fatal variance, in case the defendant is not misled thereby.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    Charles A. B. Pratt, for app’lt;
    Lorenz Zeller, for resp’t.
   FOLLETT, J.

This action was begun December 14, 1892, to recover the price of paper sold, and the damages for the breach of an executory contract to purchase paper. As a first cause of action, it is alleged that between April 4 and July 19, 1892, the plaintiff sold and delivered to the defendant paper of the value, and at the agreed price, of $415.29. As a second cause of action, it is alleged that by an executory contract, made September 1, 1887, the plaintiff agreed to sell and deliver, and the defendant to purchase, 1,000 tons of paper, to be delivered at the rate of twenty tons per month, for which the defendant agreed to pay $85 per ton, which was to be manufactured by the defendant into tickets for the elevated railroads. It is further alleged that the defendant agreed to return to the plaintiff the used tickets manufactured from such paper, for which the plaintiff agreed to pay $15 per ton. As a breach of this contract, it is alleged that, after receiving 226 tons of paper, the defendant refused to receive the remainder, 774 tons. It is also alleged that the plaintiff’s damage is the difference between the contract price, $85 per ton, and the market value, $55 per ton, or $30 per ton on 774 tons, which equals $23,220, and also the difference between the contract price of used tickets, at $15 per ton, and the actual value of used tickets, at $21 per ton, being $6 per ton on 774 tons, which equals $4,644; making the alleged total damages sustained $27,864. In the complaint it is alleged that 224 tons were delivered, and in the bill of particulars that 226 tons were delivered. °We assume that the number of tons stated in the bill of particulars is correct, as it corresponds with the amount of damages claimed. The defendant admits in its answer that it purchased paper of the quantity, value, and agreed price, as alleged in the first cause of action, and that it had not paid therefor. The defendant, in its answer, denied that it contracted to purchase 1,000 tons of paper, but admitted that it received from the plaintiff 226 tons of paper, but not pursuant to the contract agreed in the complaint. By way of counterclaim, it is alleged that the plaintiff purchased and received used tickets of the value of $470.61, but it had refused to receive and pay for a large amount of canceled tickets, to the defendant’s damage of $1,000, which, added-to thé $470.61, makes $1,470.61 damages, set up as a counterclaim, and for which an affirmative judgment is demanded. The plaintiff, in its reply, admitted that it had received used tickets, as alleged in the answer, but denied that it had contracted to purchase any used tickets except those manufactured from paper furnished by the plaintiff, and that, defendant having refused to receive pltintiff’s paper, it was under no obligation to purchase and pay for cam celed tickets manufactured from other paper. The issues thus joined were tried before a jury, which rendered a verdict for $27,000. From this judgment the defendant appealed.

When the plaintiff rested, and again at the close of the case, the defendant moved that the complaint be dismissed as to the second cause of action, on the ground that sufficient facts had not been proved to constitute a cause action, and also upon nineteen other grounds, which it does not seem necessary here to repeat. At the close of the evidence, the defendant also asked the court to render a verdict in its favor, which was denied, and' an exception taken.

I The defendant procured and read in evidence' the' follow-in, among other, correspondence which passed between the litigants:

“Feb. 8, 1888.
■ “N. Y. Bank Note Co.—Gentlemen: We will malee you 1,000 tons of paper, same as Elevated paper, at same price, to be delivered over a period of' five years from date. This proposition is made on the express condition that you will take from us twenty-five tons at any time on sixty days’ notice, which we will carry in stock for you, which is the Emit of your liability.
“Beynolds Card Mfg. Go.,
“Geo. B. Schinzel, Pres.” “February 8th, 1888.
“George P. Schinzel, President-AMy dear sir: We hereby order of you 1,000 tons of Manhattan Elevated ticket paper, subject to the following conditions: Paper to be web, width as required, color and quality subject to my approval, weight 80 pounds to 500 sheets of 22x28 inches, price four and one-quarter cents a pound, cash 10 days,, deliveries for five years, 20 tons a month, or less, as the Bank-Note Oo. may require; thereafter what they may require, unless Manhattan contract renewed, in which event same as before end of five years. You to buy all Manhattan waste at 15.00 per ton, and to carry always in stock 80 days’ supply of paper, namely, 25 to 40 tons, which .you can deliver any time on 60 days’ notice, and cancel balance of this order; and we can, as limit of our liability, take your stock on hand on 60 days’ notice. It is understood that Manhattan requires less than 10 tons a month. This letter is given you to copy out into formal shape, of even date herewith, and in accordance with your written acceptance of to-day.
“Tours, truly,
“The New York Bank-Rote Co.,
“George H. Kendall, Treasurer.”

The plaintiff testified that, pursuant to the last clause of the letter signed by the defendant, a written contract was prepared, and signed by both parties, by which the defendant agreed to purchase 1,000 tons of paper, at $85 per ton, and agreed to sell to the plaintiff the cancelled tickets manufactured from such paper for $15 per ton. It is conceded that in 1888 the defendant issued a portfolio for circulation among its customers, on the cover of which the following was printed:

The defendant insists that this is not evidence of a contract, because, at the time, the plaintiff’s president signed the following statement:

“The filling in of the above signature is authorized by me, and in accordance with my request to have this letter used as an advertisement, and said letter is of that significance only. There is no contract.
“(Signed) Geo. P. Schinzel, Pres.”

The plaintiff’s president denies that he ever signed such a paper, and characterizes it as a forgery. It seems rather unnatural that at this time, when the president of the plaintiff and the officers of the defendant were friends, and having large transactions, a statement in writing of this kind should have been taken. It was testified in behalf of the plaintiff that the written contract alleged to have been signed was returned to the defendant for the purpose of having added thereto a clause providing that the plaintiff should not sell the same kind of paper to others, and that the contract was never returned.' The plaintiff’s officers swore that there was such' a contract, and the defendant’s officers swore there was never such a contract; and, in support of the testimony given in behalf of the defendant, an unexecuted draft óf a contract was produced. In opposition to this, very many written orders, signed by the defendant, and addressed to the plaintiff, extending through the years 1888 to 1892, inclusive,, calling for the delivery of paper, were introduced in evidence, and in not one of them is there any reference to the price at which the paper was to be delivered. Many letters signed by the defendant, and addressed to the plaintiff, complaining of tardiness-in delivery, and about the quality of the paper, were read in evidence. We think it is quite significant that these orders contained no reference to price, and that so many letters complaining of tardiness in deliveries and of poor quality should have been written unless there was a contract.

This question of fact was fairly submitted to the jury by the learned trial judge, was determined in favor of the plaintiff, and we think rightly, as the voluminous correspondence between the litigants and their transactions, extending over four years, tend to support the evidence given in behalf of the plaintiff. There is little dispute in the case about the willingness and ability of the plaintiff to perform the contract. The plaintiff testified that August 1, 1892, he tendered to the defendant 774 tons of-paper, and that Mr. Kendall, tlie*defendant’s treasurer, accepted his offer, provided he would deliver it all on that day. The plaintiff’s president replied that he was willing to deliver it in accordance with the contract, and that it was unreasonable to require a delivery of that amount in a single day. It is now urged that the plaintiff, having refused to deliver the paper under this offer, failed to perform its contract, and the court was requested so to charge. There is no foundation for this contention. The testimony of the plaintiff’s president was to the effect that he offered to deliver the 774 tons of paper in accordance with the terms of the contract,—twenty tons per month,—and plaintiff could not be put in default by the defendant’s offer to receive all of it in a single day. This is the only exception to the charge that is argued, and no exceptions to the rulings upon the admission or exclusion of evidence are urged as a ground for a reversal of the judgment. The case turns upon questions of fact, all of which were sharply litigated on the trial, were found in favor of the plaintiff, and the verdict cannot be set aside as contrary to the weight of evidence.

It is urged that there is a fatal variance between the complaint and the evidence. It is alleged in the complaint that the contract was entered into about the 1st of September, 1887. The evidence shows that 'it was entered into in the following February. ■ The only variance between the allegations in the complaint and the evidence is in respect to the time when the contract was made. The date of the contract was not a material question. The material issue was whether there was a contract for the sale and purchase of 1,000 tons of paper. The defendant was in no wise misled by the variance, and, under the circumstances of this case, it was not a fatal one.

There was no conflict in the testimony over the amount of damages sustained by the plaintiff. Evidence was given showing that the difference between the contract price and the cost of the paper was $30 per ton, and that the difference between the contract price for cancelled tickets and their actual value was $6 per ton. This was not disputed, and the court instructed the jury that, if they found for the plaintiff, it was entitled to recover these differences, together with the sum conceded to be due for paper delivered.

The verdict returned shows how they reached their result:

First cause of action............................ $ 415

Second cause of action........................... 27,160

$27,575

Due defendant for cancelled tickets................ 575

Verdict rendered for....................... $27,000

In the complaint the plaintiff demanded a judgment for $25,-415.29, with interest from July 19, 1892. It is now insisted that the verdict rendered is in excess of the amount claimed in the complaint, and that the judgment should be reversed or reduced. The verdict was rendered ¡November 20, 1894, and the jury were instructed that they might, in their discretion, allow interest on the damages awarded. The damages claimed in the complaint, with interest thereon to the date of the verdict, exceed the sum awarded by the jury, and it cannot successfully contended that the damages rendered exceed the amount demanded. The damages awarded seem large, but the contract was a large one, and the defendant did not contest the amount of the damages. After a careful reading of this record, we are unable to find that any error was committed which requires or would justify the reversal of the judgment.

The judgment and order should be affirmed, with costs.

All concur.  