
    Elliot A. de Pass, Michael de Mercado, Gerald de Mercado and Walter L. Lascelles, Appellants, v. James B. Stoddard, Lloyd R. Smith and Anna F. Stoddard, Doing Business Under the Name of “ Mercantile Advertising Company,” Respondents.
    (Supreme Court, Appellate Term, First Department,
    December, 1913.)
    Deposit — action to recover amount of — contract to return a certain article “ at ” a certain time — refusal of tender when not on time.
    Where the contract, by which defendants agreed in consideration of the deposit of a certain sum in cash by plaintiffs to deliver a certain machine of defendants’ manufacture, provided that it was understood that “at” the expiration of five months from the date of shipment if the machine was returned to defendants’ office in first-class condition, all charges prepaid, for the reason that plaintiffs were unable to do any business thereon, defendants would refund the cash deposit, the word “at” will be construed to denote nearness to the time designated and requires the return of the machine and the refunding of the deposit within a reasonable time after the expiration of five months from the date of shipment.
    What was a reasonable time depended upon all the circumstances of the case and, the facts being undisputed, was-a question of law.
    The machine was shipped to plaintiffs at Buenos Ayres on March 27, 1912, and within four months thereafter they by letter notified defendants of their intention to return the machine upon its arrival in New York. Defendants by letter under date of July 11, 1912, stated that when the machine was delivered at their office and they found it in good condition they would mail plaintiffs a check for the amount of the deposit. The machine reached New York August 20, 1912, but owing to delay at the custom house was not returned to defendants until September 12, 1912, at which time they refused to accept it on the ground that it was not tendered within five months of the date of shipment. It was conceded that plaintiffs were unable to do any business on the machine which, when tendered to defendants, was in first-class condition. On appeal from a judgment in favor of defendants in an action to recover the deposit, held, that the judgment should be reversed and judgment awarded to plaintiffs for the amount demanded in the complaint.
    Appeal by the plaintiffs from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, rendered in favor of defendants.
    Albert L. Cohn (William King Hall, of counsel), for appellants.
    Root, Clark & Bird for respondents.
   Seabury, J.

This action is brought to recover $400 deposited by plaintiffs with defendants pursuant to the terms of an agreement entered into by the parties. The facts are undisputed.

In March, 1912, the defendants were the owners and engaged in the manufacture of a certain patented machine known as the “ Everflowing Bottle ” machine. The defendants agreed in consideration of $400 in cash from the plaintiffs to deliver one of these machines to the plaintiffs. The contract also contained the following provision: “It is further understood that at the expiration of five (5) months from the date of shipment if this machine is returned to our (defendants) office in first-class condition, all charges prepaid, for the reason that you (plaintiffs) are unable to do any business on said device, we (defendants) will refund to yon (plaintiffs) the deposit made of $400 as aforesaid.” On March 22, 1912, the plaintiffs, pursuant to said agreement, deposited the sum of $400 with the defendants and instructed them to ship said machine. The machine was shipped to the plaintiffs at Buenos Ayres on March 27, 1912. The plaintiffs tendered the machine back to the defondants on September 10, 1912, and demanded the return of the $400 deposit. The defendants refused to accept "the machine or to return the $400. The plaintiffs, within four months from the date, of shipment, to wit, by letter of July 9, or 10,1912, notified the defendants of their intention to return said machine upon its arrival in New York. The defendants, by letter of July 11, 1912, stated that when said machine was delivered at their office and they found it in good condition they would mail the plaintiffs their check for $400 in accordance with their agreement. It was conceded that the plaintiffs were unable to do any business on said machine, and that when the plaintiffs tendered the machine to defendants it was in first-class condition.

The machine reached New York within five months from the date of shipment, to wit, August 20, 1912, but owing to delay with the custom house was not returned to defendants until September 10,1912, when the defendants refused to accept it on the ground that it was not tendered within five months from the date of shipment.

In construing this clause of the contract regard must be had to the situation of the parties and the intent or purpose which they had in mind in making the contract. It is clear that the clause quoted did not require the plaintiffs to return the machine before the expiration of five months from the date of shipment. It is also clear that if the machine had been returned prior to the expiration of five months the defendants could not have been compelled to return the deposit until the expiration of the five months. The undertaking of the defendants, that “ at the expiration of five months ’ ’ if the machine was returned they would refund the deposit, does not mean either that the machine must be returned or that the defendants would refund the deposit precisely ‘‘ at the expiration of five months.” Commercial contracts are not to be read as if they were railroad time-tables, but are to be reasonably and fairly interpreted with a view to giving expression to the real intent of the parties. In this way only is it possible to so employ legal rules of construction that they become instrumentalities of justice rather than arbitrary standards, the application of which results in an interpretation foreign to what the parties intended.

The word at ” as employed in the clause quoted was obviously not intended to designate the precise instant of time when the machine should be returned or the deposit refunded. On the contrary it was used to denote nearness or closeness or proximity to the time designated. So construed the clause of the contract required the return of the machine and the refunding of the deposit within a reasonable time after the expiration of five months from the date of shipment. What was a reasonable time depended upon all the circumstances of the case, including a consideration of the situation of the parties, the distance which the machine must have been sent in order to be returned, and the unavoidable delay attendant upon the passage of the machine through the custom house. As the facts are undisputed and the only question of law involved has been determined upon this appeal, there is no reason for ordering a new trial.

The judgment is, therefore, reversed, with costs, and judgment is awarded for the plaintiffs for the amount demanded in the complaint, with costs.

Guy and Bijur, JJ., concur.

Judgment reversed, with costs, and judgment awarded to plaintiffs, with costs.  