
    Henry M. Wall, Respondent, v. The Gillin Printing Company, Appellant.
    (Supreme Court, Appellate Term,
    November, 1897.)
    1. Contract — Want of mutuality—Breach — Damages for delay improper.
    Where the. owner of a lithographic press makes a contract with a corporation, having lithographic stones and plates, by the terms of which the corporation engaged the press at a certain rate but for no definite period nor for any definite amount of work and only when it wanted the press and the owner could spare it, the work to be done under the supervision of am employe of the corporation^ the owner of the press is not required to keep it ready for the use of the corporation whenever it required the use and the corporation cannot, because of the lack of ■ mutuality in the contract, recover damages for delay, and particularly in the absence of proof of a demand for, and a refusal of, the use of the press.
    2. Bailor and bailee — Burden of proof. " -
    Where it appears that a lithographic stone, injured in a manner not shown, but alleged to have been broken upon the premises of the bailee, was moved there by the bailor and that there was then present, upon the premises of the bailee, an employe of the bailor who neglected his duty of receiving the stone, the onus, of disproving negligence, is • not thrown upon the bailee by the mere testimony of the employe of the bailor, that the stone was perfect when delivered to the servants ¡of the bailee and that the injury would not have happened in the ordinary course.
    ■ Appeal by the defendant from a judgment of the justice of the Third District Court in favor of the plaintiff for sixty-one dollars and eighty-five cents ($61,85) damages, besides costs.
    
      Smith & Cochrane, for appellant.
    Ralph S. Rounds and Arthur Smith, for respondent.
   Daly, P. J.

The plaintiff has recovered $61'.85, a balance claimed for the use of a lithographic printing press, and for work and material furnished for the printing of certain maps, for defendant. The answer offsets damages for imperfect printing, for delay,, and for damage to a lithographing stone, greater than the amount of plaintiff’s claim; and also avers payment in full.

All the issues raised by the pleadings were tried, and the finding was in plaintiff’s favor upon evidence which, if it did not conclusively establish the merits of plaintiff’s case, was at least so conflicting as to afford no justification for disturbing the judgment. It is claimed by appellant that this judgment may be a bar to its recovery of damages in an action against the plaintiff for the matters set up in its answer herein;, and that this result will work great injustice because defendant has been deprived, by the plaintiff’s breach of agreement, lof the profits of a large contract with the government for the printing of the maps in question; and that the record, therefore, should be closely scrutinized to see whether the preponderance of proof was with the recovery herein. In view of this serious claim, it has been necessary to consider the voluminous mass of evidence with close attention.

It is manifest from the proof that no action for damages for breach of contract by appellant in printing can be urged against the plaintiff, because he did not stipulate to do any work' within any prescribed period; he let the úse of his press and pressmen to the defendant at $25 per day, for as long and as often .as the latter required them, apparently not to exceed ten days; for the printing in' question, which was to be done with lithographic stones, plates and paper furnished by defendant, and under the direction of its pressmen who was to instruct plaintiff’s people until they were able to do the work themselves. Defendant did not agree to employ the press for any prescribed time, nor to give plaintiff ■ any stipulated amount of work, but was to use the press as he wanted it, plaintiff stipulating that it. could not fie used every day, because he had other work which must go on.

Under this arrangement, defendant was bound to frothing except to pay for what actual use he might choose to make of the. press, and plaintiff therefore was bound to no obligation except to charge no more than the stipulated price for such use. It is claimed that plaintiff was required to keep the press ready for defendant when and as long as he required it; but even without the reservation by plaintiff, above referred to, it is manifest that there was no contract for want of reciprocal agreement on defendant’s part to use the press. Mutuality, the essence of such a contract,, was wanting in the arrangement.

The facts -as to the alleged breach are these: Defendant used the press on three different occasions in February and March, aggregating nineteen days 'and a fraction, which at the rate of $25 per day made an indebtedness of $495.85, on which the defendant paid, in two payments, $450, the last payment of $200, being after the alleged breach of contract, and for which defendant exacted a receipt in full from plaintiff’s employe, without plaintiff’s knowledge. The difference was retained by defendant for damages to-a lithographic stone.

.These payments indicate that there was no agreement such as defendant relies upon1 as a basis for the serious claim for damages-for delay in the performance of the work, for at the time of the last payment, said breach had already occurred, if at all, and defendant might have refused to pay anything, if his present contention is correct. The only deduction then made by defendant was “ for-breaking the stone -and destroying the work,” and there was no claim for any other damage. Defendant testifies that he did make complaints previously, but this is denied by plaintiff, and the latter is corroborated by the facts. It may be observed that so far as the defendant’s contract with the government is claimed to have-been affected by the alleged delay on plaintiff’s part, the time of" completion by defendant under that contract had expired, and the-withdrawal by the government was optional before defendant had’ ever proposed the work to plaintiff.

In addition to these difficulties in the way of defendant’s counterclaim, there is a dispute of fact as to whether the plaintiff refused" the use of the press to defendant at any time. The proof leaves-it a fair question whether defendant did not acquiesce in the alleged interruption of its work; and it is certain that there was no-refusal to permit the work to proceed after demand or notice, no-notice or demand having been shown. The work was not continuous, nor apparently intended.to be, and, under the circumstances of the case, it would be unjust to hold plaintiff responsible-for the alleged consequences of delay without adequate notice.

There is next to be considered the question whether plaintiff is responsible for the injury to one of defendant’s lithographic stones. This stone was delivered by defendant on its own truck and by its own employe, and was carried with the assistance of some of plaintiff’s truckmen from the truck, into the plaintiff’s place, where it remained either three or five days before there was any attempt to use it. When about to be used, it was discovered to be chipped in one place at the edge.

It was a fair question whether it was injured in plaintiff’s place, or before it'got there.' The face of the stone was protected by paper pasted over with paper, and when that was removed for the press, the chip fell off. Defendant’s pressman and another employe testified that they examined the stone when it arrived at plaintiff’s place, and that it was then perfect, and that that fact could be ascertained without removing the paper. It was suggested by the pressman that it was injured when placed on a small truck by plaintiff’s workmen.. It weighed 600 pounds and required seven or eight men to take it from defendant’s truck, and five men to carry it into .plaintiff’s place, where it was placed on.the floor, and then put on a small truck by two of plaintiff’s men, while defendant’s two employes stood by without assisting in that operation. It is mere surmise that it was broken by being so handled. Defendant’s pressman states that as it came into plaintiff’s place while he was there, he was supposed to look after it. If this was his duty, it would seem that there was some negligence on his part in not assisting in placing it on the small truck, and not protecting it afterward until it was to be used.

The rule invoked by appellant, which requires the bailee of goods under certain circumstances to prove the exercise of due care (Wintringham v. Hayes, 144 N. Y. 1), does not apply to this case since it appears that the bailor by its employe, who was on the premises of the bailee, had the same opportunity to care for the goods and. to know what care was taken of them, which the bailee possessed, - and so the onus of disproving negligence was not cast upon the latter by merely showing that the article was delivered in good condition, and 'that the injury complained of would not happen in the ordinary course. In the first place the proof that the stone was perfect when intrusted to the plaintiff’s servants was' given by an interested witness, the defendant’s pressman, who was himself responsible for properly caring for it according to his own admission; and. in the next place the same employe had complete control of the subject and took such care of it as he deemed necessary. The finding of the justice on this point cannot be disturbed.

There remains the question as to whether the plaintiff’s employes damaged certain impressions of the maps in the course of printing. The damage was caused by an imperfection as testified to by the pressman whom defendant placed in charge of work to. instruct plaintiff’s workmen; but as he was present and in full control when the damage was done, it is manifest, that the sole responsibility for the imperfection cannot be laid on the plaintiff. Judgment should be affirmed, with costs.

McAdam and Bischoff, JJ., concur.

Judgment affirmed, with costs.  