Pharo v. Beadleston — 47 N.Y. St. Rep. 129

Majority

p. 129

Allen B. Pharo et al., Resp’ts, v. Alfred N. Beadleston et al., App’lts.

(City Court of New York, General Term,

Filed July 1, 1892.)

Headnote

Contract—Breach —Evidence.

In an action for breach of contract of sale by reason of a refusal by defendants to take certain thermometers with their advertisement upon them, where the defense is that plaintiffs had falsely represented that no other persons in the brewing business in a certain district had or would be furnished with thermometers for advertising purposes, and defendants testify that they entered into the contract because they believed this to be novel method of advertising and that they had never seen thermometers used for that purpose, evidence on the part of plaintiffs to show that thermometers were not a novel method of advertising, but for years had been made an advertising medium, is relevant and admissible.

Appeal by defendants from judgment entered upon verdict, and from order denying new trial.

Edward S. Clinch, for resp’ts; Guggenheimer & Untermyer, for app’lts.

—This action is brought to recover the agreed price for 2,000 thermometers with defendants’ advertisement upon the same. There is no dispute as to amount, or that the contract was made, but defendants contend that plaintiffs represented that no other persons in the brewing business in New York city, Newark, Jersey City or Hoboken had been furnished by plaintiff with thermometers for advertising purposes, and that these representations were falsely made to induce defendants to enter into the contract, which they did upon the faith of the same. The plaintiff took the stand, offered the contract in evidence and proved compliance with the terms thereof and upon cross-examination testified that before this order was taken for these thermometers he had sold thermometers of this kind to other brewers in New York city, including the Empire State Brewing Co., about February 3, 1890, and the defendants then offered and had marked in evidence, the invoice of such sale (defendants’ Ex. 1), and plaintiff continuing under cross-examination, testified that he had sold these kind of thermometers to the Long Island Brewery Co.,

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twice in July, 1890, and once in April, 1891, and defendants had ■ the invoices of these three sales marked in evidence (Defendants’ Exhibits 2, 3 and 4), and plaintiff, still under cross, continued r We had contracts for these kind of thermometers as an advertising medium, before procuring the contract in question, with the Empire State Brewing Co., and the Long Island Brewing Co. and Ernest Ochs; we had, also, in Brooklyn, the brewers Danenberg & Coles.

The defendant Beadleston was then called, and among other things-testified that he attended to this line of business, advertising and meeting people of that sort that come to the office; “in 1889 and 1890 our firm were extensive advertisers, and in advertising we sought to adopt, novel methods and get something original,” and that he asked Mr. Tully, their advertising agent, his opinion about the idea of adopting that mode of advertising, and that he said they would be good if the exclusive use of them could be had; otherwise not. He further testified that he thought there was an advantage in having the exclusive use of these thermometers as an advertising medium. The defendants’ witness, Pottberg, on direct, testified that he said át the time he thought it was a good thing to advertise, if no one else had it, and Tully, another of defendants’ witnesses, upon direct, testified that he had dealt largely with defendants for many years; that they have always been extensive advertisers ; that he bad charge of their advertising, and that they had advertised always in a novel way, and upon cross, he.said he had never seen the thermometer’s used for advertising purposes, except the one which was shown at the time the order was solicited. Mr. Woerz, the other defendant, on direct, testified: We thought the thermometer was a nice advertisement, if we had it alone; that he never saw any. thermometer as an advertisement before and thought it was new, and then the -defendants rested. Then on behalf of plaintiff evidence was given going to show that thermometers were not a novel method or medium of advertising, but that for years thermometers had been made as an advertising medium. To this, defendants objected and excepted, but the trial judge admitted the same, and in view of the evidence already quoted, it does seem that the same thereby became relevant and was properly admitted. It is; against this ruling only that défendants make serious objection. The plaintiff and his witness denied that the alleged representations had been made, and it seems they convinced the jury, for the verdict was for plaintiff for the full amount claimed, and is not against the weight of evidence. The judgment and order appealed from are affirmed, with costs.

McGown, J., concurs.