
    Elwood S. Hand, Appellant, v. William A. Shaw and James K. Shaw, Respondents.
    
      Contract—promise to pay for an advertisement by furnishing goods to a proposed ■ hotel — what proof in respect to the erection of the hotel is sufficient.
    
    Two merchants, in consideration of the insertion of their advertisement in a book published by E. 8. Hand, agreed as follows: “We promise to pay to the order of E. S. Hand two hundred "and thirty-five dollars in trade after publication of and the delivery to us of a specimen copy of same (the book), this amount to be deducted from merchandise to be sold for a proposed new hotel other than has been estimated or contracted for at this time.”
    
      Held, that the agreement to deliver goods of the value of 8235 was enforcible by the publisher upon proof by him that he had performed his advertising contract, that he had purchased real estate and had obtained plans for his proposed hotel, and that he had procured materials to be delivered upon its site, of the location of which he had notified the merchants, if it appeared that it was his purpose in good faith to erect a hotel, that the goods ordered were to be used in such proposed hotel, and that he had so notified the merchants.
    Appeal by the plaintiff, Elwood S. Hand, from a judgment of the Appellate Term of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 6th day of October, 1897, affirming a judgment of the General Term of the City Court of New York, entered in the office of the clerk of said court on the 17th day of July, 1897, affirming a judgment of the Trial Term of said court, in favor of the defendants, entered in the office of the clerk of the said court on the 13th day of May, 1897, upon the decision of the court dismissing the complaint.
    
      Charles De Hart Brower, for the appellant.
    
      David J. Newland, for the respondents.
   Ingraham, J.:

The action was brought to recover the sum of $235 for the insertion of an advertisement in a book published by the plaintiff, and was based upon a contract signed by the defendants, dated October 19, 1889, by which the defendants promised .that, in consideration of the insertion of such advertisement, we promise to pay to the order of E. S. Hand, two hundred and thirty-five dollars in trade after publication of and the delivery to us of a specimen copy of same. This amount to be deducted from merchandise to be sold for a proposed new hotel other than has been estimated or contracted for at this time, and is not transferable to any account with- • out our consent.” The complaint alleges the malting of this agreement, the insertion of the advertisement, the publication of the book and the delivery of a specimen copy to the defendants; that on the 3d day of July, 1894, plaintiff made demand- of the defendants for the delivery of goods, wares and merchandise for a proposed new hotel, other than had been estimated or' contracted for at that time in accordance with the terms of said . contract, which was refused, and asked to recover the.amount of $235. The defendants admit the making of the contract; that a specimen copy of the book showing the advertisement was delivered to them, but deny that the plaintiff made demand for the delivery of the goods, wares and merchandise in accordance with the terms of the contract, and allege that the plaintiff represented before the making of the contract that he (plaintiff) would control the ordering of goods for a new -hotel, which order would be a large- one, and that defendant signed the paper in question relying upon such representation ; that said representations made by plaintiff were false and untrue, and that the plaintiff has not kept and performed the said contract on his part.

Upon the trial it was proved that the book described in the contract containing the advertisement furnished by the defendants, was printed and published by plaintiff and copies delivered to the defendants; that in June, 1894, the plaintiff called upon the defendants and selected a bill of goods amounting in the aggregate to $241.15, and on the following day wrote a letter to the defendants, requesting the; defendants to forward the goods to the plaintiff with a statement showing the balance owing, after allowing the credit due to the' plaintiff in' accordance with the agreement of. October 19, 1889. To that the defendants replied that the plaintiff was not entitled to any credit, to which the' plaintiff replied, inclosing a copy of the agreement, with a further request to forward the goods. In reply, the defendants on June twenty-eighth expressed surprise at the contents of the letter,, stating : “ You have not fulfilled your part of the agreement, and, therefore, we decline to ship the goods selected by you. *. * * Unless you send us the amount of our bill in full, we will have to cancel the order from our books.” Subsequently the plaintiff called upon the defendants and said : “ What is your objection to allowing the credit due me because of the insertion of your advertisement in the book?” The defendant replied that he contemplated when he made that contract .that it would result in a large sale; that it would be large enough — the profits upon it would warrant him allowing this credit; that he was to pay for this advertising out of the profits of the bill that he proposed selling them; that that was defendant’s understanding, and, consequently, “ he would consider that I had not fulfilled my agreement, and that he would not honor this contract in connection with my recent purchase, as shown by the bill which I had with me. I told him I wanted the goods, and I wanted to pay for them by rendering up this contract for advertising and paying him the difference in cash. He refused to accept the contract.” The plaintiff then told the defendant “ that the goods "which I had purchased were all that would be required for the hotel that was contemplated, and that I could not increase the quantity that I had selected, or that I required for that purpose; ” that the hotel for which he" had selected the goods was a very small seashore, country-side inn, located at Breakwater, Southport, Conn. The plaintiff further testified that at that time he had made arrangements for the .erection of this hotel; that the ground had been purchased and plotted, plans: prepared, and. materials were upon the ground. The plans of the hotel were produced in court and admitted in evidence. The plaintiff then offered to prove the number of bedrooms in the proposed hotel,- but this was objected to and the objection sustained.

From the description of the goods furnished it would appear that they were all of a character required to be used in a hotel of the kind described by the plaintiff. Upon this evidence the court dismissed the complaint.

The obligation of the defendants assumed by the contract is quite clear. As a payment for the insertion of the defendants’ advertisement in this book, the defendants promised to pay to the order of the plaintiff the sum of $235, by deducting that amount for merchandise to be sold for a proposed new hotel, other than had been estimated or contracted for at the time of the making of the contract In other words, the plaintiff was to insert the advertisement for which the defendants were to pay by the delivery of merchandise for a proposed new hotel, which had not, at the time of the making of the contract, been contracted or estimated for by the defendants. There was nothing in this contract to require that the hotel for which these. goods were to be furnished"' was to be owned by the plaintiff, or that when the goods were ordered the hotel was to be completed or in existence as a hotel. The goods w;ere to be ordered for a proposed new hotel, not an existing hotel, and when the goods were ordered for such proposed new hotel, from the cost price of such goods ordered the defendants were to allow this sum of $235. Upon this evidence it was a question for the jury to determine whether the plaintiff had complied with his contract, and if they found that he had, then the defendants were bound to furnish goods to the amount specified in the contract. The plaintiff had published the advertisement and delivered the book. He had purchased property for the erection of á hotel; had procured plans to be made, and materials for the construction of the hotel had been delivered upon the ground so purchased. . He had selected the goods that he required for his proposed hotel, and had notified the defendants of the location of the hotel. The refusal of the defendants was not based .upon the fact that the hotel was not in existence, or that its location or identity was not .sufficiently described, but upon a disappointment as to the size of the order, defendants stating that their expectation was that the order for such hotel would be sufficiently large to enable them to pay this sum out of the profits, and as this was the only objection taken, any other objection that could have been obviated by a fuller explanation on the part of the plaintiff was waived. .

The learned Appellate Term seems to have affirmed this judgment on the ground that there was no hotel in which the goods ordered by the plaintiff could be used. The court say : “It is true that he (plaintiff) testified to his intention to erect one. (a hotel), and that he had plans for it. Nothing committed him to carry out his intention. He could supply his private residence with crockery and glassware to the amount of the advertising claim by simply contemplating’ the erection of a hotel. What value, then, to defendants was this contract by which they were only required to deduct ' the bill for merchandise sold for a proposed hotel. It is manifest that, before plaintiff could in good faith claim under his contract, he should prove something more than the getting of plans and some materials for a hotel. An order for goods for a hotel which was never built, and to an amount which was only a trifle above the allowance or deduction to be made from the bill, was plainly intended to secure payment under the contract in a manner not provided by it and obviously not intended by the parties.”

We think that the learned court overlooked the provisions of the contract which described the purpose for which the goods were to be used when ordered as that of a proposed hotel and not for a completed hotel. The contract was prepared by the defendants, signed by them and delivered to the plaintiff. There is nothing to shoW that it was the intention of the parties that before the merchandise was furnished a hotel was to be actually in existence. It was to be merchandise furnished for a proposed hotel. To propose is defined to be to offer as a plan or scheme; to put and hold' before one’s mind as a design or determination; to form as a purpose.” . What is proposed is something that is held before, one’s mind as a design or determination, not as an accomplished fact. Undoubtedly it was necessary for the plaintiff to satisfy the jury that it was proposed in good faith to erect a hotel; that the goods ordered were to be used' in such proposed hotel, and that he had so notified the defendants; but, upon these facts being proved, we see no reason why the defendants were not bound to comply with their contract and furnish goods at least to the amount which they had agreed should be in payment for the services rendered by the insertion of the advertisement called for by the contract.

We think, therefore, that a case was made out by the plaintiff for submission to the jury and that the dismissal of the complaint was error.

The judgment is reversed and a new trial ordered, with the appeal costs in all the courts to the appellant to abide the event.

Van Brunt, B. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  