
    The United Merchants' Press, Respondent, v. The Corn Products Refining Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    April, 1912.)
    Contracts — interpretation of contracts — particular agreements — continuing contract to manufacture and furnish goods.
    Where,- under a contract for the sale of certain cartons, aggregating many thousands, to he delivered and paid for as taken, the seller agreed to make complete delivery at a certain price per thousand F. O. B. at its plant and to pay for packing, it cannot recover for special packing and incidental expenses connected with shipping, on the buyer’s orders, cartons to various parts of the United States in individual small packages.
    A subsequent promise by the buyer to adjust the charges for extra packing was without consideration.
    Appeal by defendant from h judgment in favor of plaintiff, entered in the Muncipal Court of the city of Row York, borough of Manhattan, first district, after trial by a judge without a jury.
    O’Brien, Boardman & Platt (Leighton Lobdell, of counsel), for appellant.
    Rufus L. Weaver, for respondent.
   .Bijur, J.

Defendant gave plaintiff two orders to furnish certain advertising material known as cartons or “ dummies ” aggregating 40,000 pieces. Both orders contained the following provision: “ These dummies are to be held by you and paid for by us as taken, we agreeing to take complete delivery within one year. We paying charges for packing." Price $68.50 (and $27.50 respectively) per thousand F. O. B. Hew York.”

Defendant ordered these dummies to he shipped to various parts of the United States in packages containing from twenty-five to a thousand each. Plaintiff sues for the value of the special packing and incidental expenses involved in making up these comparatively small packages.

Plaintiff-respondent’s manager testifies: “ Instead of packing these goods in the most convenient packages in large cases, we had to pack them in cases containing from twenty-five to five hundred ”; and again he testifies that plaintiff’s claim is for The costs of the individual small packages, less the costs of putting those goods or shipping those goods in large quantities, such as we ordinarily would do * * * and extra labor that we put on those goods, making the numerous shipments instead of a usual shipment that would he made ”

In substance, this "amounts to a claim for greater compensation based on a bargain which plaintiff would have preferred to make after it found that it had made a different-bargain. The contract provides that the goods were to he delivered and paid for “ as taken,” and that defendant was to pay no charges for packing.

Bespondent makes some claim, apparently based on the phrase “ F. O. B. How York,” which it claims should be interpreted as" meaning “ F. O. B. respondent’s plant in Hew York,” as stated in the prior request for quotations coming from appellant. l ean see neither the force nor the relevancy of the point. The controversy centers not about the place of delivery, but about the question whether' appellant was hound to order the goods packed in large quantities in the-manner in which plaintiff’s manager expected -they would be ordered, or in such quantities as appellant chose and as provided in the contract.

Some evidence is offered by plaintiff to the effect that one of defendant’s agents had promised to adjust plaintiff’s extra charge for packing; but a promise to adjust is not a promise to pay; and, if it were, it would, have been without consideration, because plaintiff was already under obligation-to furnish the services, payment for which was claimed to have been promised. Vanderbilt v. Schreyer, 91 N. Y. 392; Robinson v. Jewett, 116 id. 40; Arend v. Smith, 151 id. 502.

■ Guy and Lehman, JJ., concur.

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