
    Thomas Riego Hart, Appellant, v. John Cort, Respondent.
    (Supreme Court, Appellate Term, First Department,
    December, 1913.)
    Contracts — license to produce a certain play — action for royalties — burden of proof to show existence of a custom.
    A contract by which plaintiff granted to defendant a license to produce a certain play with limitation as to time and place is plain, and a ruling that it is ambiguous for failure to specify whether the right to produce the play was exclusive or not, and that in an action for royalties the burden was on plaintiff to prove that the license was not exclusive was manifest error; and where the case was submitted to the jury on such theory a judgment for defendant will be reversed and a new trial granted.
    If it were the intention of the parties that a further limitation was to be placed on plaintiff’s rights over the play words expressive of such intention could and should have been embraced in the contract, and the mere assertion of a custom that would impose such a limitation on plaintiff did not render the contract ambiguous.
    The burden was on defendant to show the existence of such a well-known custom that the parties would have contracted with the intention and expectation that it would apply to their contract.
    Appeal by the plaintiff from a judgment of the City Court of the city of New York, entered upon the verdict of the jury, and from an order denying the plaintiff’s motion to set aside the verdict and for a new trial.
    Alfred E. Hinrichs, for appellant.
    House, Grossman & Vorhaus (Alfred Beekmann, of counsel), for respondent.
   Page, J.

The action is brought upon a contract by which the plaintiff granted to the defendant a license to produce the play “La Tosca” within the United States and Canada, during a limited term, upon the payment of a royalty of fifty dollars for each performance, the defendant agreeing to give at least forty performances.

The defendant did not produce the play and plaintiff’s action is to recover the sum of $2,000, less the sum of $350 paid on account upon signing the contract. The answer admits the making of the contract and that the-defendant did not produce the play, and by way of defense sets forth an alleged custom by which a license for the production of a play by a well-known performer is deemed to be exclusive within the territory and for the period for which it is granted, and that the plaintiff violated the condition of the agreement imposed by such custom, by granting to some other person, without the knowledge or consent of the defendant, a license to produce the same play within the term and territory limited by the contract. The defendant further counterclaimed to recover the $350.

Upon the trial the learned judge held this contract to be ambiguous, for the reason that it was not specified therein whether the right to produce the play was exclusive or not, and held that the burden was upon the plaintiff to prove that the license was not exclusive. The case was submitted to the jury upon this theory.

This was manifest error. The language of the contract is plain and unambiguous. The defendant is given the right to produce the play with limitation as to the time and place. If it had been intended that a further limitation was to be placed upon the plaintiff’s rights over the play in the meantime, words expressive of that intention could and should have been embodied in the contract.

The assertion by the defendant of the existence of a custom that would impose such a limitation upon the plaintiff did not render the contract ambiguous. Custom is to be resorted to in the construction of contracts only in cases of doubt or ambiguity as to their meaning. It is not available to create such doubt or ambiguity.” Marlatt v. Erie R. Co., 154 App. Div. 388, 391.

The burden rested upon the defendant to prove the existence of such a well-known custom that the parties must have contracted with the intention and expectation that it would apply to their contract. In my opinion, the defendant’s evidence does not establish the existence of such a custom. If such a custom exists it is strange that all the licenses to produce a play upon which judicial action has been sought, either to restrain the violation of defendant’s exclusive right or to obtain damages for a violation thereof, have had the words ‘‘ sole ” or “ exclusive ’’ inserted before the words ‘‘ right to produce. ’’ The fact that no reference to such a custom is made in the various textbooks on the subject would inferentially negative its existence as an open and well-known custom in this particular business,

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Lehman and Whitaker, JJ., concur.

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