#### Carlton Illustrators, Inc., Appellant, *v.*American Locomotive Company, Respondent.

First Department,

June 18, 1915.

Contract — agreement giving exclusive rights to work of illustrator for advertising purposes—breach by refusal to order illustrations — contract construed.

A written contract whereby the defendant agreed to accept for advertising purposes the work of a particular illustrator employed by the plaintiff’s assignors for a period of one year, the assignors agreeing that the illustrator should not, during that period, make any similar drawings for other persons, is breached by a failure of the defendant to order any advertising illustrations during said period,'even though the contract in express terms did not require the defendant to take any illustrations, if in the contract accepted by the defendant it was stated that the assignors expected the defendant would require approximately the same number of drawings furnished during the preceding year, upon which assumption the contract price was based.

Appeal by the plaintiff, Carlton Illustrators, Inc., from a judgment of the Supreme Court in favor of the defendant, *290entered in the office of the clerk of the county of Hew York on the 12th day of June, 1914, upon the dismissal of the complaint by direction of the court at the close of plaintiffs case-

*William B. Dungan,*for the appellant.

*Thomas D. Thacher,*for the respondent.

Scott, J.:

In the month of May, 1913, and for several years prior thereto Joseph E. Charter, Archibald A. Martin and William T. Wallace carried on business as copartners under the firm name or style of the Carlton Illustrators. Among other things they designed and made drawings and illustrations for advertising purposes, and for some years prior to May, 1913, they had designed and furnished to defendant such drawings and illustrations which were used for advertising automobile cars and trucks. In May, 1913, a contract was made for the rendition of like services for the following year. This contract was embodied in two letters, one written by J. Eemington Charter, as general manager of the Carlton Illustrators, and the other by L. A. Van Patten, as advertising manager of defendant. The first of these letters read as follows:

> *“May*21, 1913.

> “Mr. L. A. Van Patten,

> “ The American Locomotive Co.,

> “ 1886 Broadway,

> “Hew York City:

> “Dear Sir.— I write to put on record the agreement reached by us in conversation yesterday, by which Mr. Popini will make all the drawings required by the American Locomotive Company for advertising their passenger cars and trucks, and for no other passenger motor car or truck, for one year from date.

> “ You agree, in consideration of this undertaking, that Mr. Popini. shall not make drawings for any other motor car or truck concern, to give Mr. Popini all the drawings to do that you will require for your advertising for this period, including press, catalogues, and booklets. The prices of the drawings are to he based on a rate of $125.00 each for subject pictures, such *291as you have used in your current years’ newspaper and catalogue advertising. We understand that you expect to require approximately the same number of drawings as during the past year, and it is upon this assumption that this price is based.

> “We take this opportunity of expressing our very great appreciation of the great courtesy you have always extended to us, and to assure you of our best efforts to serve your interest in the future.

> “We are,

> “ Yours faithfully,

> “J. REMINGTON CHARTER,

> “ *General*Manager.”

> The acceptance of the proposition in behalf of defendant read as follows:

> “ *May*24, 1913.

> “Mr. J. Remington Charter, *Gen. Mgr.,*

> “ Carlton Illustrators,

> “Flatiron Bldg., N. Y.:

> “ Dear Sir.—The points made in your letter of the 21st with reference to Mr. Popini’s services for next year are in accord with our understanding. We wish, however, to point out in case of illness on the part of Mr. Popini or his being out of town for any reason, we would want opportunity to use some one else in your organization. This, of course, may never happen, but I simply want to put it on record. * * *

> “ Very truly yours,

> “AMERICAN LOCOMOTIVE COMPANY,

> “ L. A. Van Patten,

> “ *Advertising*Manager.”

The defendant for some reason never gave any order for • designs under this contract, undertaking to repudiate Van Patten’s authority to make a contract for it, but on the trial it was expressly stipulated by defendant that in May, 1913, Mr. Van Patten had implied authority to bind defendant by such a contract.

The dismissal apparently proceeded upon the theory, upon' which it is now sought to be sustained, that defendant did not agree to take any illustrations unless it saw fit to do so, and *292hence that its refusal to take any at all was not a breach of the agreement. We do not so construe the contract. The Carlton Illustrators, by whom the cause of action was assigned to the present plaintiff, stipulated to employ a particular illustrator and keep him at defendant’s disposition for a year, undertaking that he should not during that time make any drawings for any other passenger motor car or truck. It would be a most unreasonable construction of the contract to assume that it was intended that during this whole period no orders for drawings were to be given, and that it was not so intended is shown by the expressed understanding that defendant would require approximately the same number of drawings as during the past year. This understanding, we think, entered into the contract as one of its terms and was not confined solely to the fixing of the price per drawing.

The judgment appealed from must be reversed and a new trial granted, with costs to the appellant to abide the event.

Ingraham, P. J., McLaughlin, Laughlin and Clarke, JJ., concurred.

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