
    Frederick Neff, Respondent, v. Benno Klepfer et al., Appellants.
    (Supreme Court, Appellate Term,
    February, 1896.)
    1. Contract — Continuing order to manufacture.
    An order to manufacture and keep constantly on call a specified number of articles, and. replace when called for, is a continuing •order for the manufacture of that number of articles, and implies an obligation to take and pay for them within a. reasonable time.
    
      3. Evidence — Custom.
    Evidence is ■ always admissible to explain the meaning of terms, used in any particular trade when their meaning is material to construe the. contract, and the rule extends to forms of expression as . ..well as to single words.
    Appeal by defendants from a judgment' of the First District ■Court in favor of plaintiff for $215, for the price of 9,000 paper boxes.
    ■. Melville H. Regensbufger, for appellants. •
    ’ Henry Schmitt, for respondent. . .
   Daly, P. J.

According to the testimony of plaintiff’s witness, Wilcox, he called upon- the defendant, who was a manufacturer of corsets, using paper boxes’ of . a particular description, and Solicited orders for the manufacture by plaintiff of such boxes; that defendant gave an order to make 5,000 boxes as. a sample -order, which proved, to be satisfactory, and defendant then said he wished plaintiff to make 9,000 of different, colors and sixes, and. ■keep them on call, and replace when called for; that' defendant was to'furnish his own labels for the boxes, and did so; that payments were to.be made in monthly settlements; that defendant furnished labels for-about one year, during which time there were manufactured, delivered and paid for about 150,000. boxes;. that in October, 1893, plaintiff had on hand 9,000 .boxes that had been made on call pursuant to the contract; that .defendant then . promised to take them, hut said he was then temporarily shut down, as the tariff had affected him, but would take them and a good many more; that defendant, however, took no more boxes, and about a year afterward - this -action was brought to recover for the 9,000 boxes.

On this state of facts plaintiff was entitled to recover,- as the;’ justice might find that the defendant had had a reasonable time in which to take, and pay for the goods which had been manufactured and kept on call for him under his order. 'It is con-.. tended, however, that upon a previous .trial of this case the plaintiff’s' witness, Wilcox, gave a different version of the transaction with the defendant, .and testified, in substance, that, upon his soliciting the defendant’s. orders,, the conversation was that. if plaintiff would keep stock on hand of these boxes defendant would give him, orders; and it is claimed that the keeping of stock on hand was an inducement for orders, and that no obligation to pay for them rose "until orders were given.

Whatever construction might be placed upon the agreement as testified to upon the former trial, the testimony upon the last trial, amplifying the details of the conversation between the contracting parties, tended to show that the stock on hand was made upon an express and continuing order, and that the defendant was bound to receive and pay for the boxes so kept on hand, if not within a month, according to the terms of payment agreed on, their within a reasonable time. It is true that the witness Wilcox testified that he considered the answers he gave were substantially the same on both trials, but this construction which he puts upon the effect of .his testimony is not very material, since upon the second trial he .gave tire whole conversation.

As to the legal effect of the arrangement, as now before us, there can be no doubt. An order to manufacture and keep constantly on hand 9,000 boxes was first given, with, orders for delivery to follow from time to time, the stock on hand to be constantly kept up. It was a continuing order for '9,000 boxes to be manufactured. This construction imposes no unreasonable burden upon the defendant, who could, at the time of. giving any Older for delivery, notify plain Lili to manufacture no more stock, and so limit his' obligations to his actual needs.

Proof of custom was admitted by the justice to explain the meaning of the contract to keep boxes “On call.” This was proper. Evidence of custom to explain the meaning of the words “ on approval ” was held to be proper. Evidence is always admissible to explain the meaning of terms ftsed in any particular trade, when their meaning is material to construe the contract, and the rule extends to forms of expression as well as to single words. Smith v. Clews, 114 N. Y. 190.

Judgment affirmed, with costs.

MoAdam and Bisohoee, JJ.,. concur.

Judgment affirmed, with costs.  