
    MARSHALL IBBOTSON, Plaintiff and Respondent, v. JACOB A. SHERMAN, Defendant and Appellant.
    I. PERFORMANCE, SUBSTANTIAL, WHAT LS NOT.
    
    1. Contract por publishing.
    
      (a.) Where J. contracted with S. to insert a certain advertisement in 30 different newspapers for a period of one year in consideration of a certain sum to be paid quarterly in advance, and during the quarter for which suit was brought the advertisements was omitted in seven consecutive issues of one Of .the papers,
    HELD
    not a substantial compliance.
    (1.) An inference springs from this that J. was either Negligent or intentionally in fault.
    H. JUDGMENT ON REFEREE'S REPORT.
    
    1. Reversal on questions op pact.
    («.) In above case where a witness swore to the non-inserfc&a ;ih seven consecutive issues of one of the papers and produced "-the issues of the papers, and J. as a witness swore that he put the advertisement in 34 papers and that it was in all of them for & months to his own knowledge; hut also swore that he himself had received the issues of but 20 papers and gave an unsatisfactory account as to the other 10; and the referee decided as matter of fact there was a substantial performance,
    HELD
    the evidence did not establish substantial performance, and the judgment should be reversed, m. DES AD JUDIO ATA.—JUDGMENT.
    
    1. CONTRACT CALLING FOR PAYMENT BY INSTALLMENTS.
    (<z.) Recovery of judgment fob first installment, effect of.
    1. Conclmim as to the validity of the contract.
    2. Also as to matters necessary to be established to warrant the judgment for the first installment, and equally necessary as a foundation for the recovery of each of the other installments.
    Before Sedgwick, Speir and Freedman, JJ.
    
      Decided June 25, 1877.
    Appeal from judgment entered on report of referee.
    The plaintiff as assignee of one Jacobs brought this action for three installments, alleged to be due by the defendant, under a contract. The first installment had "been paid under the judgment hereafter referred to. The contract, made October 26, 1870, was that Jacobs agreed to advertise the defendant’s card, “the same as now in Frank Leslie, in thirty papers for one year, with good notices once in six months, for six hundred dollars, to be paid quarterly in advance. Any of the papers failing to give the advertisement and the notices, others shall be used equally as good and desirable. The papers are the following,” and their names were set down. The complaint alleged that a substituted list of papers, in number thirty, had been .made under the agreement, and that advertisements had been inserted in them, in pursuance of said agreement.
    The complaint also averred that said Jacobs commenced an action in the mariné court, on January 27, 1871, for the recovery of the first two installments, in which action defendant appeared and answered ; that a trial of said action was had, on which both parties introduced evidence as to whether there was any contract binding on the defendant, and if so whether the said Jacobs had performed the same; that in said action, said Jacobs recovered judgment in the marine court for $300, and costs, being for the first two installments of $150 each ; that on appeal to the general term of the court of common pleas by the defendant, that court reversed the judgment so far as the same related to the recovery of the second installment only, on the ground that the action was prematurely brought therefor, but affirmed it as to the first installment; and that defendant has since paid the same.
    The answer alleged that the agreement was not to be performed within one year, and was not signed by either of the parties, and was therefor invalid, void, and of no effect; it then admitted the commencement of the marine court action, and the recovery of the judgment therein as alleged in the complaint, and the payment thereof, and that the amount of the original judgment was reduced on appeal; and otherwise made a general denial.
    The referee found for the plaintiff, for the second installment, and that the plaintiff’s assignee had made substantial performance during the second quarter.
    
      H. M. Whitehead, for appellant.
    
      S. S. Harris, for respondent.
   By the Court.—Sedgwick, J.

As the promise by defendant was to pay in advance, probably it was not material to the plaintiff’s cause of action to aver that there had been performance of what his assignor had promised to do after the payment was to be made. The subsequent non-performance, if there were such, was to be pleaded by defendant, to show that the consideration had failed, or as a counter-claim. But on the trial, no regard was had to the pleadings, and the important question was whether the proof showed that plaintiff’s assignor Jacobs had advertised for the second quarter as he had agreed.

On this question of fact, the referee found at first, that Jacobs had performed for the second quarter, but in answer to a request of defendant he found that “it was necessary for Jacobs to have made substantial performance during the second quarter, and that he did so perform.” On looking at the testimony it will be found, that the points of non-performance, as proved affirmatively, were these, that during the second quarter one of the papers in the list had omitted the advertisement, in one of its issues, and another in seven consecutive issues. Perhaps an omission for one or two or three weeks, against a contract made by Jacobs with the papers, would be of such comparative unimportance that there might be said to be a substantial compliance, if that were the only omission. But when there has been no advertisement for seven weeks, the default is not trifling, but is important to the interests of the defendant, and from it springs the inference that Jacobs was negligent, or intentionally in fault. It is suggested that the proof did not show that the paper which was produced and which did not have the advertisement for seven weeks, was on the list. But this does not seem correct. The name of the paper as given by the witness is not on the list. The witness however swore that it was one of the list, and the papers were introduced in evidence. It was probably the fact that the witness made a verbal slip.

Coupled with this direct evidence, Jacobs, as a witness, failed to prove that the advertisement had been in all the papers. Although he swore on his direct examination that he put the advertisement in thirty-four papers, and that it was in all of them for six months to his own knowledge; yet he also swore that he had received himself the issues of but twenty papers, and gives an unsatisfactory account as to the other ten. It is clear that he had seen only a part of these ten occasionally, and some he had not seen at all. To me, the evidence does not show that there was a substantial performance, and for this reason the judgment should be reversed.

The judgment in the marine court, as admitted by the pleading, established the existence and validity of the contract, and also that the second list of papers had been competently substituted for the first.

The form of the so-called “notices” and their situation as advertised by Jacobs was sufficient.

The judgment should be reversed, a new trial ordered, and the order of reference vacated, with costs to appellant to abide the event.

Speir and Freedman, JJ., concurred.  