
    The McCall Company, Appellant, v. John B. Eagan, Respondent.
    
      Contract for the sale of dress patterns — guaranty by the vendor to pay any loss sustained by the. vendee — loss, how ascertained — return of patterns on hand.
    
    In an action to recover a sum of money alleged to be due upon a contract dated February 16, 1899, it appeared that the contract provided for the-sale of dress patterns by the plaintiff to the defendant at fixed prices; that it obligated the defendant to sell none but the plaintiff’s patterns and to reorder once each week or oftener all patterns sold by him so as to keep on hand a supply equal to his original purchases.
    The agreement further provided that all patterns furnished by the defendant, which the plaintiff should report as “discarded by it semi-annually, could be returned by the defendant within sixty days from the date of the discard report at half- cost price in exchange for other patterns at cost price.
    The agreement ended with the following guaranty.: ‘ ‘ The McCall Company (the plaintiff) guarantees that if, at the end of two years from date, the result of the business shows a loss in the sale of patterns•—-that is, if we (the defendant) have paid them more money for patterns than we have received for patterns, they will, upon demand made by us and receipt of the patterns within thirty days after the expiration of such two years, pay us such loss in cash, provided all the terms of this contract have been fully complied with.”
    The agreement was, by its terms, to remain in force for two years from its date and thereafter until the expiration of sixty days’ notice given by either party in writing.
    The defendant claimed to have sustained a loss within the meaning of the guaranty at the end of the two years, viz., .on February 15, 1901, and finally elicited from the plaintiff, under date of March 28, 1901, a communication, inclosing a statement of the defendant’s loss as figured by the plaintiff, stating that “We herewith inclose a statement dated February 15th, showing your purchases and sales to that date, and by which it appears that you have sustained a loss of -§111.65.”
    May 9, 1901, the defendant gave the plaintiff written notice of its intention to terminate the contract, to which the plaintiff replied, under date of May 21, 1901, saying: “ Your favor of the 9th inst. duly received. We accept it as the sixty days’ notice that you desire to terminate your contract and, therefore, shall not make any shipments after the 8th of July, next.’’
    
      Held, that the judge who presided at the trial of the case committed no error by permitting the jury to allow the defendant, on his conceded indebtedness to the plaintiff, the amount of his loss as adjusted in the letter of March 28, 1901;
    That the fact that the defendant neither returned nor offered to return the patterns , which he had paid for and which he had on hand July 8, 1901, when the contract terminated, did not deprive him of the benefit of the guaranty;
    
      That the provision in the guaranty, referring to “receipt of the patterns,” was not equivalent to an agreement upon the defendant’s part to return all patterns which he had on hand, if he claimed the right to enforce the guaranty.
    Appeal by the plaintiff, The McCall Company, from a judgment of the County Court of Orange county, entered in the office of the clerk of the county of Orange on the 18th day of December, 1902, upon the verdict of a jury in favor of the plaintiff, and also from an order entered in said clerk’s office on the 6th day of January, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Joseph Roseh, Jr., for the appellant.
    
      William A. Parshall, for the respondent.
   Hikschbekg, J.:

The verdict of the jury was in favor of the plaintiff, but the amount being less than fifty dollars, the defendant has entered judgment for taxable costs and disbursements after deducting the amount of the verdict with interest.

The parties entered into an agreement, partly printed and partly written, apparently on a printed form prepared by the plaintiff, which agreement is dated February 16, 1899. By its terms the contract was to remain in force for two years from date, and thereafter until the expiration of sixty days’ notice given by either party in writing. On May 9, 1901, the defendant gave to the plaintiff a written notice of termination of the contract, to which the plaintiff replied in writing, under date of May 21, 1901, saying: “Tour favor of the 9th inst. duly received. We accept it as the sixty days’ notice that you desire to terminate your contract and, therefore, shall not make any shipments after the 8th of July, next.”

The contract, in so far as is material to the issues, provided for sales of dress patterns by the plaintiff to the defendant in stipulated monthly shipments at fixed prices. The defendant agreed to sell none but the plaintiff’s patterns, and to keep and offer those for sale on the main floor of his place of business. He further agreed to reorder once each week, or oftener, all patterns sold by him, so as to keep a constant supply on hand equal to his original purchases. He further agreed not to sell the patterns for less than the catalogue retail .prices. The agreement further provided that all patterns purchased by the defendant which the plaintiff should report as “discarded” by it semi-annually—January and July;—could be returned by the defendant within sixty days from the date of the discard report at half cost price in exchange for other patterns at cost price. There is no other provision for the return of any of the ■patterns sold or to be sold to the defendant. The agreement ended with a “ guarantee against loss ” in the following terms, the words “we” and “us” referring to the defendant, viz.: “The McCall Company guarantees that, if at the end of two years from date, the result of the business shows a loss in the sale of patterns—that is, if we have paid them more money for patterns than we have received for patterns, they will, upon demand made by us and receipt of the patterns within thirty days after the expiration of such two years, pay us such loss in cash, provided all the terms of this contract have been fully complied with.”

The defendant claimed to have sustained a loss within the meaning of the guarantee at the end of the two years, viz., on February 15, 1901, and after some delay in propuring an adjustment-of the extent of it, finally elicited from the plaintiff, under date of March 28, 1901, a communication inclosing a statement of the defendant’s loss as figured by the plaintiff and stating that “We herewith inclose a statement dated February 15tli, showing your purchases and sales to that date, and by which it appears that you have sustained a loss of $111.65.”

There was no real dispute upon the trial in relation to the accounts between the parties. Nothing developed on the trial to impeach the accuracy of the adjustment of the defendant’s loss, and the main contention on this appeal arises from the fact that the leárned County Court, in a charge which was certainly as favorable to the plaintiff as the plaintiff was entitled to, permitted the jury to allow the defendant on his conceded indebtedness to the plaintiff the amount- of the adjusted loss. The plaintiff insists that the defendant was not entitled to the benefit of the adjustment because he neither returned nor offered to return the patterns which he had paid for and which he had on hand on July 8, 1901, when the contract terminated, and claims that the provision in the guarantee referring to “ receipt of the patterns ” is equivalent to an agreement on the defendant’s part to return all patterns which he may have on hand if he claim the right to enforce the guarantee.

It is obvious that, whatever may be the meaning, if any, of the words quoted, they are not susceptible of bearing the defendant’s construction. The guarantee does not purport to insure the defendant against loss during the life of the contract, but only for the pei-iod of two years. The contract is to continue by its terms for two years and thereafter until terminated by notice. The contract might continue in fact a great number of years, but the engagement of the plaintiff to pay loss is expressly limited to the result of the business of the first two years. It is further to be noted that the loss to be paid is not the actual loss sustained ; that is, it is not a loss which is to be qualified in any way by the value of unsold patterns which the defendant may then have on hand, but is- a loss to be arbitrarily fixed by ascertaining the difference between the sums which the defendant shall then have paid and received for patterns, wholly irrespective of the future business dealings of the parties.

The plaintiff so understood it. In June, 1901, the month after the notice to terminate the contract had been received, it sent’ the defendant a statement of account without allowing the adjusted loss as a credit, and on attention being called to the omission, wrote : “ You state that you believe there is a credit due you as per our letter of March 28th, and desire corrected statement. It is quite true we wrote you March 28th that it appeared you had sustained a loss of $111.65, and we again repeat that it appeared you had sustained a loss, but we do not believe you are entitled to any credit on account, as our records show you did not re-order patterns as sold.” The evidence fairly establishes that the defendant did reorder patterns as sold, but the significance of this communication consists in the fact that the only excuse which the plaintiff could offer for not abiding by the guarantee was a pretense in relation to reorders (which are certainly not connected with the guarantee in any way), and that no suggestion was made that a return by the defendant of the patterns he had on hand was a condition precedent to the enforcement of the claim.

Moreover, the plaintiff as late as August, 1901, offered in writing to buy from the defendant all the “good, live patterns” which he then had on hand, which offer finally failed only for want of an inventory. The inconsistency between such an offer and the present claim that the patterns belonged to the plaintiff, is too obvious to require comment.

The other questions presented do not require discussion. The case was tried with the utmost solicitude for the rights of the plaintiff, the result is in accordance with the requirements of the proof, and the judgment and order should be affirmed.

Goodrich, P. J., Woodward, Jenks and Hooker, JJ., concurred.

Judgment and order of the County Court of Orange-' county affirmed, with costs.  