Neff v. Klopfer

BOOKSTAVER, J. Plaintiff sued upon’an ■alleged contract with defendants, by which it was agreed that he should make and keep on hand for their use a certain number of paper boxes, for which the defendants dontributed certain labels. The defendants contend that they agreed to give their trade to the plaintiff, if he would keep a sufficient stock on hand to insure a prompt delivery of their orders. We think that this contention is upheld by the weight of the evidence. Not only did defendant testify that this was the agreement, but plaintiff’s principal witness, when asked, on cross-examination: “Q; The conversation you had, you say, was that if Neff and Co. would keep on hand a certain amount of these boxes IClopfer would give you orders? A. The prices being right!” And, further: “Q. Is that so? A. Yes, sir; I had that impression. Q. You don’t want to correct it? A. No.” It will, therefore, be seen that if plaintiff has any cause of action against the defendant it is for a breach of this contract, and not for “goods" manufactured and sold at defendants’ request.” The judgment must therefore be reversed, as against the weight of the evidence. Brown v. Sullivan, 1 Misc. Rep. 168, 20 N. Y. Supp. 634. Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.