
    Charles H. Nicoll, Respondent, v. The New York Boat Oar Co., Appellant.
    (New York Common Pleas—Additional General Term,
    December, 1895.)
    Contract—Performance.
    Defendant gave to plaintiff’s assignor an order to publish its advertisement in Gl. Amsinck & Co.’s Catalogue for 1893-1894, to be paid for on publication, not prior to February 1, 1894. No application for copy for the- advertisement was made upon defendant until the fall of 1894, when it canceled the order. A catalogue was issued in January, 1895, bearing the imprint of plaintiff’s assignor, but which made no reference to Amsin'ck. Reid, that no performance on the/part of plaintiff’s assignor was shown; that the book was not issued during • the season for. which .it was intended, and was not Amsinclt’s catalogue, although one thousand copies were delivered to and distributed by that company. '
    Appeal from a judgment rendered in the District Ogurt in the city of Rew York for the first judicial district.
    
      Elmer. A. Allen and John E. Eustis, for appellant.
    
      William G. Timm, for respondent.
   Bookstaver, J.

This action .was brought.by the plaintiff . as assignee of Power & Co.,, to recover on the following contract: ' '

“ G. Amsinck & Cods Catalogue.
“ An Ilustrated Catalogue of the Best Products of American Manufactories'for the úse of all merchants and traders in . the Spanish Countries of the World, most of whom are cus-, tomers of .the above firm, the -largest' Commission House in existence
“ReW York, Sept 18, 1893,
“ Power & Company
“ Corporation '
"“Is hereby authorized to insert our advertisement in-G..Amsinck & Co.’s Catalogue for 1893-1894, to occupy the' ' space of one page, for which we agree to pay One hundred and ' twenty-five dollars, payable On ' publication,, not prior to-Feb-. 1, 1894, to the order of Power & Company.
“F..D. Wilsey, Presr
. “ New York Boat-Oaf Go.
, “ The publishers will not -be. responsible for. any conditions not expressed in this contract.”

"I No catalogue of. any kind was .published until the' month of' January, 1895, when a book entitled “ Catalogo Illustrado Delas Majores Producciones'de Fabricas Americanas,” was, issued bearing the imprint of Power & Co., and the cover' ’ also bore the same title. One . -thousand copies ' .of this catalogue were delivered to the firm of G. Amsinck & Co., containing an advertisement of the defendant’s business, and it is claimed by the plaintiff that this was a compliance with the terms of the contract and entitled him to recover the contract price of the advertisement in question. This the defendant denied. ' The phrase, G. Amsinck & Co.’s Catalogue,” means . either, a catalogue owned by G. Amsinck & Co. or one gotten up under their direction and supervision or a book published by them. But the book in question does not satisfy . any of these meanings. The name of that firm does' not appear in the title page or elsewhere as the owner, publisher or supervisor of the work; neither did the facts developed on the trial show that it was owned, gotten up or supervised by them, dn the contrary, it was clearly shown that it was Power & Co.’s catalogue, and was gotten up and published by that company. The mere fact that G. Amsinck & Co. received from Power & Co. 1,000 copies of the book, which they distributed among their customers, did not make it their catalogue. No one would think of calling Trow’s directory John Smith’s directory, although Smith had subscribed for 1,000 copies thereof.

But there is still another reason why there should have been no recovery in this action. By the terms of the contract 'it was to have been a catalogue for 1893-1894, i, e., for the season of 1893-1894; but it was not issued until January, 1895, and hence was entirely too late for the season contemplated. ,

Plaintiff’s contention that the delay was caused by the failure of advertisers to send in their advertisements in due season cannot avail him, for this was one of the risks the „ company assumed when it undertook to get out the catalogue for the season fixed, and the defendant cannot be held responsible for the failure of others. It would be responsible only for its own failure, and in this respect it was nowise in fault. It was not asked for copy until October 4, 1894, when it replied that it had no copy to send and canceled the order theretofore given, saying, among other things, “ We did give a contract on September 18tli, 1893, but as it has not been carried out and fully 13 months have elapsed since then, it is toó.late to be of any use, and we.have been frequently advised that this. is not Messrs. G. Amsinck’s catalogue at all, and have been . shown letters in reference to this from Mr. Amsinck’s own people, that -they have nothing to do with it ^ * .” . And we think the defendant wag fully justified in taking the' position it did under the facts in the case, and, considering the time which had elapsed from the giving of the order. - ' . ’/

We, therefore, think the judgment' should be reversed, with costs to the appellant.

Bisohoef, J., concurs.

Judgment reversed, with cost's.  