
    Hartwell Abbey, Resp’t, v. Levi H. Mace et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 6, 1892.)
    
    1. Contract—Time for performance.
    Where no time is fixed in the contract itself, the thing to be done must be performed within a reasonable time. What is a reasonable time is a question of law, unless the facfs are disputed; but where there is a dispute, the question as to whether there has been a failure to perform is properly left to the jury.
    2. Same—Damages.
    In an action for breach of a contract by which defendants were to furnish plates to plaintiff, who was to decorate them by machinery, on account of a failure to deliver the plates, a verdict for the amount expended by plaintiff in the preparation of the machinery and die, and for his time expended thereon at the rate which he had been earning theretofore, cannot be considered excessive.
    3. Trial—Errors in charge.
    A judgment will not be set aside on the ground of errors in the charge, where such errors did not mislead the jury, and they did not act upon, them.
    Appeal from a judgment rendered on the verdict of a jury at trial term, and from an order denying a motion for a new trial.
    
      Martin J. Keogh, for app’lts; William A. Abbott and Albert A. Abbott, for resp’t.
   Bookstaver, J.

This action was brought to recover damages for alleged breaches of a contract entered into between the plaintiff and defendants on the 5th of January, 1891, whereby the defendants agreed to deliver to the plaintiff ready for decoration 2,000 dozen bread boards, to be decorated by him with such designs as defendants might select, for which defendants were to furnish the die, if it did not exceed in cost thirty-five dollars. The agreement further provided that the work of decoration should he done in a proper and satisfactory manner, or if not, that the agreement should be cancelled; and that meanwhile the plaintiff should not furnish decorations on bread boards in any design to any one else than the defendants.

The work to be done by the plaintiff under this agreement was to be by machinery, and was somewhat experimental in its character, as nothing of the kind had before been attempted. It took him some time to prepare the machinery for this work, and how much time he took was one of the questions in dispute, plaintiff claiming that he had his machinery in working order as early as-March, while the defendants claimed it was much later. There was contradictory evidence upon this subject; but, nevertheless, it is clear that the defendants also had difficulty in preparing the-plain wooden plates which were to be delivered to the plaintiff for decoration. Various experiments were tried to turn them by hand and by machinery so as to make them uniform in size and uniform as to the bevel of the edge, which was necessary in order to properly decorate them; but they all failed. The evidence, however, shows that the work could have been done by a skillful workman with an ordinary lathe, although this would have taken a longer time.

When the plaintiff rested his case, the defendant moved to dismiss the complaint on the ground that the contract by its terms, fixed no time for performance on the part of either party, and it. was necessary in order for plaintiff to recover, to show that he had limited the time for performance by giving the defendants notice-that they must do so within a fixed time which had expired; and second, on the ground that no breach of contract had been shown. It is true that the contract does not fix the time within which the work was to be done, but it by no means follows that the plaintiff was bound to give the defendants notice to perform. It was always their duty to do that without notice, and where no time is fixed in the contract itself, the thing to be done must be performed within a reasonable time. Bottum v. Moore, 13 Daly, 464; Wright v. Bank of Metropolis, 110 N. Y., 237; 18 St. Rep., 92; Colt v. Owens, 90 N. Y., 368; Hedges v. Hudson River R. R. Co., 49 id., 223; Both v. Buffalo, etc., R. R. Co., 34 id., 548. It is quite tnm that the question as to what is a reasonable time is a question of law unless the facts are disputed. See Both v. Buffalo, etc., R. R. Co., supra. But in this case there was a wide divergence in the testimony as to when the plaintiff was ready with his machinery to do the work, and when he requested the defendants to deliver the plain plates, and also as to,whether or not the plaintiff agreed to wait until the defendants should give him notice that they were ready to furnish the plates. Under these circumstances we do not think the court erred in refusing to decide as a matter of law that there had or had not been any breach of the contract or whether defendants had or had not furnished'the plates within a reasonable time, but properly left both of these questions to the jury.

On the coming in of the verdict, the defendants moved to set it aside and for a new trial, because it was contrary to the evidence. As before stated, there was a conflict of evidence on the vital points in the ease, all of which were supported with more or less testimony by both parties; and on a careful review of it, we do not think there is such a preponderance of evidence in defendants’ favor as would warrant us in setting aside the verdict, especially as there does not appear to have been any passion or prejudice exercised on the part of the jury, or any improper influence used on them in obtaining their verdict

The motion for a new trial was also based on the ground that the verdict was for excessive damages ; but from plaintiff’s testimony, which was apparently believed by the jury, it appears that he had spent at least $500 in the preparation of machinery, power, space and die for doing the work, and that he had devoted 156 working daj^s in getting ready for the work and in and about the business, and that before that time he had been earning three dollars a day, which would make $468, or a total of $968, time and money, actually expended upon the work, and interest on that from the commencement of the action to the rendering of the verdict makes the sum- of $997.04, the amount found by the jury ; which demonstrates that they allowed nothing whatever for profits or for other expenses; and we think it was a just and proper amount under the circumstances.

It is true that at the request of plaintiff’s counsel the jud'ge, after charging the jury that the plaintiff before entering upon this contract was earning three dollars a day, and it would be proper for them to allow that amount for his services for the time actually spent in attempting this contract, subsequently charged in effect that he being an expert mechanic they might allow him more. This, we think, was error, but it is manifest from what has been said that it was an error which did not prejudice the decision, as the jury only allowed plaintiff three dollars a'day for his services; and the court in charging the jury was careful to state to them that they could allow only for the time actually employed in attempting to fulfill his part of the contract.

So, too, it was error to charge that the total sum for which they might find a verdict was $1,274.31. But the judgment of the court below should not be set aside on this ground, for it is manifest that the charge did not mislead the jury and that they did not act upon it.

There was no error in the admission or exclusion of evidence. The question asked of plaintiff as to whether or not “'from a time in March when the design had been made and approved, and the •die manufactured and ready', down to the commencement of this action, were you or not at all times ready to perform the contract which has been put in evidence on your part?” was not objectionable on the ground of assuming facts not previously proved, be•cause all of the facts therein intimated had been proved before that time, although it is true that other dates had also been mentioned. The objection to the question asked of the plaintiff as to what Mr. Mace had said to him during the trial of the action, was not well taken.

It was a statement as to his feeling in regard to the matter which could have been contradicted by him at the time if it were untrue, and we do not think the answer could in any way have affected the jury in rendering the verdict they did. Instructions given by the defendants to their workmen, not in the presence of the plaintiff, were properly excluded.

The judgment should therefore be affirmed, with costs.

Bischoff and Pryor, JJ., concur. •  