
    Louis L. Quereau, Plaintiff, v. The Computing Scale Company of Dayton, Ohio, Defendant.
    First Department,
    February 2, 1912.
    ■Contract — payment of money bn certain date — cancellation of contract on that date.
    Where by the terms of a contract $5,000 was to be paid plaintiff by defendant on the 30th day of January, 1909, defendant cannot defeat plaintiff’s right to the money by a telegram sent at twelve thirty-two p. el on that day canceling the contract. Whatever effect such a telegram might have ¡on the subsequent life of the agreement .it can have no retroactive ■ effect.
    This is so although about six months previous defendant had given plain, .tiff notice of-a defect in the patented device -which was the subject of the .contract pursuant to a clause therein providing that, if the device * should prove defective, defendant should have the right to cancel the agreement upon giving ninety days’ notice of the defect to the plaintiff.
    Motion by the defendant, The Computing Scale Company of Dayton, Ohio, for a new trial upon a ease containing exceptions, ordered to be heard! at the Appellate Division in the first instance upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the New York Trial Term in June,, 1911.
    
      Theodore M. Taft of counsel [Taft & Sherman, attorneys], for the plaintiff.
    
      Thomas A. Mullen of counsel [Ward D. Williams with him on the brief], Elon S. Hobbs, attorney, for the defendant.
   Clarke, J.:

. The Barnard Company, plaintiff’s assignor, owned a patented device to be applied to computing scales. The defendant is a manufacturer of such scales.

An agreement was entered into, dated July 2.0,190'T, between the two companies under wMch the Barnard Company granted to the defendant an exclusive license to make, use and sell weighing scales, throughout the. United States, and the territories thereof containing the said patented invention, or any part thereof, for the term of. said letters patent, subject to provisions therein contained. Five thousand dollars was to be, and was, paid on the execution, of the. agreement, wMch further provided: “ And,, the said party of the second part further agrees and guarantees that for the next succeeding year the total royalties for that, year shall not be less than Five Thousand Dollars ($5000); said sum óf Five Thousand Dollars to be paid by the party of the second part to the party of the first part on the twentieth day of January, 1909.”

The second payment of $5,000 due by the terms of the agreement on January 20, 1909, not having been paid, the Barnard Company assigned its claim to the plaintiff and this action was brought. The 10th clause of the agreement provided as follows: “In case the said patented invention hereinbefore referred to shall, for any reason, prove to be inoperative or defective, the said party of the second part shall have the right to cancel this agreement, provided the said party of the first part fails or neglects to cure said defect within a period of ninety days after receipt of a written notice from said party of the second part setting forth said defect, and, to the best of its knowledge, the reasons therefor.”

The answer set up, inter alia, that subsequently to the. making of the said contract, and more than ninety days before the 20th of January, 1909, the defendant found that the alleged invention or device was defective and inoperative in certain particulars set forth, and that the defendant thereupon notified the said Barnard Company in writing of said defect as provided in paragraph 10 of said contract, and that the said Barnard Company received said notice more than ninety days before the 20th of January, 1909; that the Barnard Company did not, and could not, , cure said defects and make ¡said invention operative and of practical value; that after the expiration of ninety days from date of 'said notice, and before the 20th of January, 1909, the defendant, in accordance with the provisions of paragraph 10, canceled said contract, and the Barnard Company received notice of such cancellation before the 20th day of January, 1909. .

It was in evidence that the following telegram was sent and received:

“ Dayton, O., Jan. 20, 1909. 12:32 p. m. “A. W. Barnard, Prest, the Barnard Co.,
18 Dock Square, Boston, Mass.:
Under our privilege in claim ten in agreement we cancel contract between us. See our letter June sixteenth last year.
“ THE COMPUTING SCALE CO.”

The principal controversy upon the' trial was whether the notice provided for under clause 10 had ever been given.. The defendant cláimed that it was contained in the letter of June 16, 1908, referred to in the telegram quoted. No such letter was produced. The defendant’s books and papers had been destroyed by fire, and the writer of the letter had died prior to the trial. The plaintiff admitted the receipt of a letter dated June 16, 1908, but failed .to produce it, claiming that it had been lost. Upon the evidence presented the learned trial court came to the conclusion that there was not sufficient evidence to establish the notice required by contract and directed a verdict for the plaintiff for $5,716.15, denied a motion to go to the jury, and denied a motion to set aside the verdict, to -all of which rulings exceptions were duly taken, and directed the exceptions to be heard at the Appellate Division in the first instance.

Upon a careful examination of the testimony we are satisfied that if the sole question were whether the letter dated June 16, 1908, admittedly sent and received, constituted the notice provided for under section 10 of the contract, a question of fact would have been presented requiring submission to the jury. But the contract provides for the payment of $5,000 on the 20th day of January, 1909. Unless the contract had been terminated prior to that date, said amount on that date was due and payable. This is so evident that the defendant in its answer avers that after the expiration of ninety days from the date of said notice, which it claims was contained in the letter of June 16,' 1908, and before the 20th day of January, 1909, it canceled said contract and the Barnard Company received notice of such cancellation before said date.

The sole claim of cancellation is by the telegram which was sent at twelve thirty-two p. M. on January 20, 1909, and of course was neither sent ñor received before the day on which the amount due was payable. Whatever effect it may have on the subsequent life of the contract, it is evident, we think, that it can have no retroactive effect. It follows, therefore, that on the 20th day of January, 1909, the $5,000 was due, and, not having been paid, the direction of a verdict for the plaintiff was right.

The exceptions of the defendant should be overruled, the motion for a new trial denied, and judgment directed to he entered upon the verdict, with costs to the plaintiff.

Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Exceptions overruled, motion for new trial denied, arid judgment ordered on the verdict, with costs. Order to be settled on notice.  