Majority
p. 285The Railway Advertising Co., Appellant, v. Charles H. Posner et al., Respondents. (Supreme Court, Appellate Term, June, 1901.)
Headnote
Contract — Construction — Time,The plaintiff contracted to insert the defendants’ advertising card in certain street cars for a term of twelve months commencing December 1st, 1899, and the right was also reserved to the defendants to discontinue the contract at the end of three months by giving the plaintiff thirty days previous written notice and paying twenty-five dollars per month additional.
Held, that the last day for giving notice of discontinuance was Jan. 30, 1900.
That, in the absence of any proof thereof, it was erroneous for the court to submit to the jury the question whether the time for giving notice had been extended by consent or acquiescence.
Appeal from a judgment rendered in favor of the defendants in the Municipal Court of the city of New York, sixth district^ borough of Manhattan.
Einstein & Townsend, for appellant.
Cornelius F. Collins, for respondents.
This case turns upon a written contract between the parties, which is so plain as to scarcely require construction. The contract, which was dated November 26, 1899, authorizes the plaintiff to insert the defendants’ advertising card in certain street surface cars “ for a term of twelve months commencing December 1st 1899.” The contract contained the following clause: “ Posner Bros. reserve the right to discontinue this contract at the end of three months by giving the Railway Advertising Company 30 days previous written notice and paying $25 per month additional.” The contract thus, by its terms, began to run on December 1, 1899, and was to continue for one year unless terminated in the manner therein prescribed. It could be discontinued only at the end of three months from the commencement of the term,
p. 286
or on March 1, 1900, and then only by giving the plaintiff thirty days’ previous written notice. Thirty days prior to March 1, 1900, would have been January thirtieth. No such notice was given. On January thirty-first the defendants wrote to the plaintiff requesting it to take their cards from the cars, and to keep them out for one month. On February 1, 1900, defendants wrote to the plaintiff, “We again notify you to discontinue our contract for advertisement in cars ending March 5th ”. Neither of these, notices were effectual to end the contract, because neither was given thirty days before the expiration of three months after the ' commencement of the term. The letter of January thirty-first did not purport to be a cancellation of the contract, but merely a notice to keep the cards out for one month. The letter of February first, in addition to being too late, did not undertake to terminate the contract on March first three months after the expiration of the term, but on a later date. The justice, under exception by plaintiff’s counsel, submitted to the jury the question whether, by consent or acquiescence of the parties, the time for the commencement of the contract had been extended to December 5, 1899. There was no competent evidence to justify such a contention on the part of the defendants, and the submission of the question was error. The contract itself provided as follows: “ Cards to be furnished by advertiser, and in case of delay of copy or cards it shall be at the advertiser’s loss.” The cards were tiot furnished until December fifth, but there was no evidence that the'plaintiff would not have been able to place them in the cars if they had been received by December first. The defendant testified that when he made the contract he said to one of the plaintiff’s officers, “ how about printing? ”— to which the officer replied, “ I will send you a printer.” It appeared that the officer in question telephoned a printer to call on Mr. Posner, and that he did so at once and received an order to print the cards. It was owing to delay in the printing of the cards that they were not ready to be inserted in the cars until December sixth. There is certainly nothing in this testimony to charge the plaintiff with the printer’s fault, if he was in fault, in not having the cards printed in time. The plaintiff did not stipulate that it should select the printer, or even advise the defendants to employ any particular printer, but more 'as a friendly act, at defendants’ suggestion, sent a printer with whom the defendants might or might not make a contract.
p. 287
There was nothing to justify leaving the question of the extension of the contract to the jury, and, for the error in so doing, the judgment must be reversed and a new trial granted, with costs to abide the event.
Present: Scott, P. J., Beach and Fitzgerald, JJ.
Judgment reversed and new trial ordered, with costs to abide event.