
    Maltby K. Pelletreau, as Receiver of The Brett Lithographing Co., Respondent, v. The United States Electric Light & Power Co., Appellant.
    (New York Common Pleas — Additional General Term,
    June, 1895.)
    The decision of a District Court justice, rendered upon conflicting evidence, will not be disturbed in the absence of proof of partiality, prej - udice or bias.
    A contract for lithographing letter heads which are adapted only for use by the company which ordered them, and which are wholly unfitted for sale as a general article of merchandise, is one for work and labor, and not for sale, and is not within the Statute of Frauds and need not be in writing.
    Appeal by the defendant from a judgment of the District Court in the city of New York for the second judicial district, rendered upon a trial before the justice thereof without a jury.
    Action for “ work, labor and services and material furnished on breach of contract.”
    The answer sets up a general denial and the Statute of Frauds.
    The pleadings were oral. The facts, so far as they are material,' are stated in the opinion.
    
      üharles Snow Kellogg, for appellant.
    , Howard A. Sperry, for respondent.
   Giegerich, J.

The plaintiff at the time of the transactions hereafter referred to was a lithographer. After having made two or three sketches or engravings for a letter head containing the name and address of the defendant, and after furnishing it with a proof and an estimate, the latter, through its authorized agent, orally gave an order to the plaintiff to lithograph 15,000 letter heads on United States linen paper for fifty-seven dollars, he to furnish' the paper and to do the lithographing on it.

There was a direct conflict upon the trial as to the exact terms of the contract. On the one hand, the testimony adduced on plaintiff’s part tended to show that plaintiff did not guarantee satisfaction; but merely stated that he would do the work in a satisfactory manner; and that the letter heads were not to be of the exact quality and size of the paper as the sample furnished by the defendant. While on the other, the testimony for the defendant tended to show that the letter heads were to be the exact quality and size of paper as the sample furnished by the defendant, and that the plaintiff would do the job in a manner satisfactory to the defendant’s assistant secretary and treasurer.

The conflict of testimony, we assume from the judgment rendered, was resolved in plaintiff’s favor ; and hence we conclude that it was not the object of the contract to gratify taste, serve personal convenience, or satisfy individual preference. Consequently, the cases cited by apj>ellant’s counsel are not in point upon the question of performance of the terms of the contract as they were found to be by the trial justice.

After the delivery of the letter headings to the defendant, the latter rejected the same and informed the plaintiff thereof by letter, wherein it was stated: “ The 15,000 letter headings which you delivered as per your estimate of March 20, 1894, we consider as totally unfit for any use excepting for communications between our stations, and for such purpose they would be worth to us about one-half of your price for same, or $29.50 for the entire lot. Let us hear from you at once as to whether this is acceptable, as otherwise the goods are awaiting your order.”

The plaintiff did not accept the said offer, and the question whether there was a performance of the contract was litigated upon the trial. There was a direct conflict of testimony upon this point, which, we assume from the judgment, was also determined by the trial justice in favor of the plaintiff, and we see no reason for disturbing his conclusion upon the facts in the absence of the elements which are requisite to review the same. Lynes v. Hickey, 4 Misc. Rep. 522; 24 N. Y. Supp. 731; 54 N. Y. St. Repr. 120.

Counsel for appellant insists that though the contract was performed by plaintiff, still it was void under the Statute of Frauds.

The evidence, as disclosed by the justice’s return, clearly shows that the letter headings lithographed by the plaintiff were designed exclusively for use in the defendant’s business, and, upon defendant’s own showing, were manifestly not adaptable to any other purpose. The contract was, therefore, one for work and labor, not of sale, and was not within the Statute of Frauds; and hence was not required to be in writing. Hinds v. Kellogg, 37 N. Y. St. Repr. 356; 13 N. Y. Supp. 922; 133 N. Y. 536; Passaic Mfg. Co. v. Hoffman, 3 Daly, 505.

The case of Shrimpton & Sons v. Dworsky, 2 Misc. Rep. 123; 49 N. Y. St. Repr. 129; 21 N. Y. Supp. 461, cited by appellant’s counsel, is clearly distinguishable from the one before us. There the complaint alleged that the plaintiff sold to the defendant goods, viz., fifty gross needle books,” and the evidence clearly established the fact that the needles were the thing contracted to he sold, and although they were delivered in envelopes, these were in stock, and nothing remained but' to print on them “ Empire Stationery and Hovelty House, Hew York.” "While in the present case the thing contracted for was the skill and labor of the lithographer to lithograph letter headings which were not in stock, but had to be fabricated by him, and which, when produced, were, as shown by defendant’s proofs, wholly unfitted for sale as a general article of merchandise, being adapted only for use by the company which ordered them.

As we are satisfied from a careful consideration of the evidence that the decision of the justice was, in all respects, correct, the judgment should be affirmed, with costs.

Bischoff, J., concurs.

Judgment affirmed, with costs.  