
    Ellwood S. Hand, Appellant, v. William A. Shaw et al., Respondents.
    (Supreme Court, Appellate Term,
    September, 1897.)
    Contract — Payment “ in trade ”— Particular limitations.
    Where merchants enter into a written contract with an advertiser by which, in consideration of his insertion of their advertisement in a hotel-book, they promise to pay to his order $235 “ in trade,” after publication and delivery of 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, and is not transferable to any account without our (the merchants’) consent,” the merchants are not bound to allow the advertiser goods to the amount of $235 upon any order which he may choose to give, and need furnish goods for a proposed new hotel only; and where it appears that the advertiser has no hotel whatever in existence, but merely has plans for one, which he testifies that he intends to erect, the refusal of the merchants to furnish him goods to the extent of $235 upon his general order is not a breach of the contract.
    Hand v. Shaw, 20 Misc. Rep. 698, affirmed.
    Appeal by plaintiff from an affirmance by the General Term of the City Court of a judgment of the trial court in favor of defendants, entered upon the dismissal of the complaint in an action tried by the court and a jury.
    Charles De Hart Brower, for appellant.
    David J. Newland, for respondents.
   Daly, P. J.

The facts do not essentially differ from those presented on a former appeal (Hand v. Shaw, 18 Misc. Rep. 1), and the. complaint upon the new trial, which was then ordered, was dismissed by the trial court in accordance With the views expressed by the Appellate Term. Briefly stated, the leading facts are these: The defendants are dealers in crockery and glassware and furnished the plaintiff with an advertisement,' to be inserted in a book or pamphlet descriptive and illustrative of the Hotel Iroquois, Buffalo, New York, the following agreement being executed-by them to the plaintiff: ■ “In consideration of the insertion of our advertisement to occupy one page a copy'of which we will furnish, in the. book descriptive and illustrative of the. Hotel Iroquois, Buffalo,-New York, we-promise to pay to the order of E. S., Hand $235 in trade after publication of and the delivery to us of a specimen copy of the 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 transferrable to any account without our consent.”

The plaintiff avers that the book was published and a copy sent to defendants, and that, on July 3, 1894,.plaintiff demanded of defendants delivery of goods, wares and merchandise to- be sold for • a proposed new hotel, other than had been .estimated or contracted for at that time, in accordance with the terms of - the -said contract, which was refused, and that there is justly due to- plaintiff from defendants goods of the value of $235, but that defendants refusé to furnish the same, and that plaintiff is entitled to judgment for $235, with interest from Mhy 14, 1890.

The facts proved by plaintiff in support of his alleged demand and the refusal were that, in June, 1894,' he went to defendants’ place of business and selected goods, amounting in price to $241.15, and had a bill therefor made out to himself. He did not, at that time, refer to the contract of 1889, nor state that the goods were ordered for a hotel;'but, after going away, wrote a letter to the defendants, asking them to forward the goods and to favor him with theh statement showing the balance- due them, after allowing the credit due him, in accordance with the agreement of October 19, 1889. .

Not receiving the goods, the plaintiff, eight days after, wrote'to defendants asldng when the goods would be shipped. In reply to a letter of defendants saying that they were not aware of any credit to which he was entitled, he "wrote them inclosing a copy of the agree-meat; the defendants, declining to ship the goods, in reply stated that when he selected the goods he did not allude to the agreement, and called his attention to the provision in the agreement that “ it is not transferable to any account without our consent,” which they declined to give. Plaintiff then called on defendants and saw one of them who said their objection to allowing the credit was that, when the contract was made for the insertion of the advertisement, he contemplated that it would result in a large sale, the profits from which would warrant him in allowing this credit; that he was to pay for this advertising out of the profits of the bill. The plaintiff, at that interview, seems to have first alluded to a contemplated hotel and told defendant tKat" the goods he had purchased were all that would be required for the hotel that was contemplated, that it was a very small seashore country-side inn at Breakwater, South-port, Connecticut.

It appears that the plaintiff’s wife owned land at the place, which had been surveyed and laid out in plots for a hotel and cottages; and that, at the time of the first trial, there were materials on the ground for the erection of the so-called hotel or inn; and that a stonehouse, observatory tower and water works, etc., house and stabling were nearing completion; but plaintiff also stated, in answer to the specific question “ Is the Breakwater property a hotel? No; that is a residence; I have plans for the Beacon Point Inn.” The plaintiff offered to pay defendants, in cash, the difference between $235 and the bill ordered, $241.15, which they refused to accept.

On the former appeal in this case; we held that the defendants wrere entitled to notice that the merchandise sought to be bought by the plaintiff was* for a proposed new hotel and also of the particular • proposed new hotel for which it was intended, before they could be charged with a breach of the contract in refusing to make the sale. Nothing in the present record affects the decision so made; and we might properly affirm, this judgment dismissing the complaint upon the grounds of the former decision. It may be briefly ■added that, if the plaintiff’s contention in this case were allowed, then we would be required to construe, the contract of defendants without any of the limitations contained in it. We should have to hold that their agreement was simply to allow goods to- the amount of $235 upon any order which the plaintiff might choose to give; because, if plaintiff were not required to give an order for a specified hotel but might order -goods independently, as he did in this case, having simply a possible hotel in mind but not disclosing even that fact to defendants, then all of the special conditions of their contract may be disregarded. It is needless to say that every provision of the contract must be given its' due effect.'

The contract provides that the advertising is to be paid for by defendants allowing $235 on a bill of goods ordered for a hotel, and that the allowance cannot be transferred to any other account. That is to say that the allowance cannot be applied by the plaintiff to any bill of goods ordered from the defendants,, unless they have been ordered for a hotel, and the obligation of the defendants, therefore, does not ‘arise until goods are so ordered. Unless the hotel be specified at.the time the order is given, the order would in no sense differ from a purchase upon any other account, and would be in effect a purchase outside of the contract restrictions, and, therefore, no deduction could be claimed on account of the contract.

We held, on the former appeal, that the defendants could not refuse to make the sale under the terms of the contract, if solicited by the plaintiff in good faith so to do. Upon the evidence, it would seem that the element of good faith was wanting in the case. ■ There was no hotel in which the .goods ordered by the plaintiff .could be used. It is true that he testified to his intention to erect one, and that he had plans for it. Nothing committed him to carrying 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 á 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.

The judgment of the City Court should be affirmed, with costs.

McAdam and Bischoff, JJ., concur.

Judgment, affirmed, with costs.  