
    Elwood S. Hand, Respondent, v. Joseph E. Pennock et al., Appellants.
    (City Court of New York, General Term,
    November, 1896.)
    Contract — Provision for payment by work;
    Where a contract for advertising is indorsed with a provision that . the sum named therein is only available as a credit and is .to be deducted from the contract price of work upon a proposed building other than had then been estimated on or contracted for, and that unless such contract ■ was awarded to the advertisers they were to be absolutely acquitted of any charge for the advertisement, no recovery thereon can be had- until the contract for work has been made and work done thereunder. - -
    Appeal from judgment in favor of the plaintiff, entered upon a verdict directed by the court.
    Sullivan & Cromwell, for appellants.
    C. D. Brower, for respondent.
   Schuchman, J.

This is an appeal from a judgment, entered., upon the verdict of a jury directed by the court in.favor of the plaintiff and against the defendants. .

The defendants except to the direction of the verdict.

The plaintiff in his complaint sets up. three .causes of action’ on three different advertisement contracts in writing by which' the defendants promised to pay'$235 in each instance in trade, , on publication and delivery of two copies of the advertisement’ to them. . .

The defendants in their answer admit 'the making of the contracts, and the performance of the advertisements agreeable to the written contracts, but the several contracts contained an indorsement which is signed by the plaintiff and the. defendants and which reads as follows: .

“ The within-named amount is only available as a credit and is to be deducted from the contract price of our work upon a. proposed building, other than we have estimated on or contracted for prior "to the date hereof. In the event of said contracts not being awarded us, we are to be absolutely acquitted of any charge for the advertisements herein provided.”

This means, that if no contract is. awarded to the defendants they are not to pay for the advertisements, and that the amount of said advertisement contract is only payable by being deducted from, the contract price for defendants’ work upon a proposed building.

La other words, that the contract price must be in existence before the amount of the advertisement contracts can be payable, or be .deducted therefrom.. -

There is a total absence of evidence of any contract whatsoever having ever been entered upon by the defendants for doing their work (carpenter work) upon a proposed building.

There never was any such contract made by the defendants.

For that reason no contract price was in existence from which the amount of the advertising contracts could be deducted. In short, the event at which the amounts of the three advertisement contracts were to become payable by being deducted from a contract price, has never arrived,.and, for that reason, the defendants are not obligated in any manner to the plaintiff on said advertising contracts.

The direction of the verdict was wrong, and the judgment must be reversed, with costs to the appellants to abide the event, and a new. trial granted.. . .

Conlan and O’Dwyer, JJ., concur.

Judgment reversed, with costs to appellants to abide event, and new trial granted.  