
    GEORGE T. NEWHALL, Appellant, v. WILLIAM H. APPLETON, et al., Respondents.
    
      Terms used in contracts; evidence as to trade meaning admissible—JRebuttal by witnesses whose knowledge of the trade commenced subsequent to the contract, when admissible—Conditions precedent, relevant to the issue.
    
    Evidence that the word “orders ” in a contract whereby one is employed as a canvasser to obtain orders for serial publications at a compensation of a specified sum “for each and every order obtained” hada certain meaning in the trade of book canvassing, is admissible.
    The defendant in an action brought by the canvasser under such a contract to recover the specified sums for orders obtained by him, having called witnesses who testified that the words according to the usage and custom of the trade meant each order that proved good, by which was meant, that the orders should be bona fide signatures unconditionally for the complete work, and should prove good by the delivery of from one-quarter to one-third of the whole number of parts to, and the payment therefor by the subscribers, that such was the custom now ; and the custom in 1877 (when that contract was made) was the same as it is now. The plaintiff thereafter called witnesses who had been familiar with the business since 1878, or 1879, but not before, and asked, “ Do you know the customs and trade meanings in that business now ? ” The question was objected to and the objection was sustained. JBJeld error, for which the judgment should be reversed.
    Under the custom and trade meaning as testified to on behalf of defendants the Court held that proper deliveries to the subscribers was a condition precedent to payment by them, and therefore it was relevant to the issue to investigate whether or not the defendants had made the proper deliveries,
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided January 6, 1890.
    Appeal by plaintiff from a judgment dismissing the complaint, entered upon the report of a referee.
    
      William W Badger, attorney and of counsel, for appellant, on the questions considered in the opinion, argued:—
    I. The last general term opinion in this case (54 Superior Ct. 557, Mem. printed below), is still the law of the case. Evidence was excluded as immaterial which tended to show that ten parts had been delivered in some places, and had failed of delivery in many other places, solely by the fault or neglect of defendants in not tendering the deliveries in the time required by the contracts, one to four each month after the canvass.
    II, The Court of Appeals in this case, in March, 1889, in its second division, 114 N. Y., 140, allowed evidence of custom so far only as it tended to show any technical or trade meaning of the words used in the contract. Defendants called their employees and three other witnesses on that issue, all of whom swore undisputed that the customs and trade meanings were the same now as they were in November, 1877, when this contract was made, and then proved the present customs as they claimed them. The plaintiff then produced six witnesses who knew the present customs well for two to ten years past, and their evidence was excluded, on the ground that their personal knowledge did not extend back twelve years to 1877.
    III. The guarantee of $60 a week is fully proved by three witnesses, entirely undisputed except by Davis.
    
      Campbell & Paige, attorneys, and Edward Winslow Paige, of counsel for respondents, on the questions considered in the opinion, argued :—
    None of the exceptions are well taken. (1). The evidence of the meaning of the words “ so much an order ” was properly admitted. Newhall v. Appleton, 17 J. and Sp., 23, 241 ; S. C., 114 N. Y. 140, 143. (2). Evidence as to the meaning of those words by witnesses who did not know their meaning at that time, but did know it since that time, e.g., now, was not admissible. We have a presumption of the continuance of fact, but none of the pre-existence of fact. Swords v. Edgar, 44 How, 139, 147. (3). The evidence as to the deliveries was properly rejected. It was wholly immaterial to the plaintiff’s canse of action, which was upon a contract, by which he was entitled to payment as soon as the paper subscriptions were delivered. The deliveries had nothing whatever to do with the matter. Having failed in the proof of his cause of action, he cannot recover upon a cause of action alleged in the answer. Romeyn v. Sickles, 108 N. Y. 650, 652 ; Neudecker v. Kohlberg, 81 Ib. 296, 301 ; Haughran v. Hebbard, 70 Ib. 54, 59,60.
   By the Count.—Sedgwick, Ch. J.

The action was brought upon a contract, as alleged in the complaint, by which defendants employed the plaintiff as a canvasser to obtain subscriptions or orders for serial publications and agreed to pay a specified sum of money “ for each and every order he obtained.” The action is the same that is reported in 114 N. Y. 140 ; 102 Ib. 133; 49 N. Y. Super. 238.

On the present trial, the defendants properly were allowed to prove that the term “ order” had a certain meaning in the trade of book canvassing. The defendants’ agent who made the contract with plaintiff had testified that the promise was to pay for “ good orders.” The testimony to prove the meaning, was of the following kind: Rowe, a witness for defendants, was asked by their counsel “ Do you know whether the words, so much an order, in that business have a settled meaning ? The answer was, Yes. Q. Please state what that meaning is ? What does the expression $4 an order mean ? A. It means $4 for each order that proves good. Q. And what do you mean by that ? A. I mean that the order shall be, etc. Q. And is that custom uniform in the business. A. I have never known an exception to it. Q. For how many years. A. Well, for at least fifteen years. Q. And the custom that you speak of was the custom in 1877, as it is now? A. Yes. Q. And it always has been uniform since your connection with the business ? A. Yes.” Other testimony of a like kind was elicited by the defendants. The present meaning was shown, and that the meaning was the same in 1877 and 1878.

To meet this kind of testimony the plaintiff proved by a witness, that from 1878 or 1879 “ he had been familiar all the time with the customs and trade meanings of the business.” He, however, did not know what the customs and trade meanings were in November, 1877, when the contract was made. Then the plaintiff asked, From what date do you know them ? This was excluded as immaterial and for a like reason was excluded the further question, Do you know the customs and trade meanings in that business now ?

If the question had been answered, the referee might have been persuaded that the meaning which defendants claimed existed in 1877, in November, had no existence from a time shortly after that date to the present time. Although the point of the issue as to this subject was the meaning, at the time of the contract, yet whatever was circumstantial evidence as to that meaning was admissible, especially in a case of contradictory testimony. If the meaning was in November, 1877, as described by defendants’ witnesses, with the prevalence, generally, fitness to the kind of trade, and duration they attributed to it, then a referee might find it must have continued down to at least 1879. If, then, it were shown that there was no such meaning in 1879, there might be validly a doubt of whether there was that meaning in November, 1877. It would be the case of determining , the existence of a cause, by proof that certain things were its effect. It would be relevant to show that the effect had not occurred.

In my opinion the questions excluded should have been admitted, and that for this reason there should be a new trial.

It was relevant to the issue to investigate whether or not the defendants had made the proper deliveries of the serials to the subscribers, as this was a condition precedent of the subscribers paying for ten numbers,, or whatever number, when paid for, was the test of the subscription being the kind of order intended by the contract.

I do not find from anything upon record, that it is correct to attribute to the referee the impropriety of intention and action charged by the learned coun-. sel for the appellant. I may add that .the only subject before the court, is the character of his ruling. A slur is easily made upon an absent person and a court, especially, should not indulge in one. As I understand the testimony of the plaintiff, it sustains the finding of the referee, that the parties did not make the guarantee that is averred in the complaint.

The judgment should be reversed, the order of reference vacated, and a new trial had, with costs to abide the event.

Feeedman and Ingeaham, JJ., concurred.  