(77 Hun, 511.)

#### LITTLE v. BANKS.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Contracts—Interpretation—Publication or New York Beports.

Code Civ. Proc. § 211, provides that a contract for the publication of the reports of the court of appeals shall provide for such publication fonthree years after the expiration of the time specified in the last contract. A contract with defendant made pursuant to such section provided that defendant, after publication of any volume, should, under a penalty, keep-on hand and sell the same at a certain price to any person desiring to-purchase. *Held,*that such contract required defendant to keep the books-on hand only during the three years for which contract was made, and; for such reasonable time thereafter as should be required to finish books-in process of completion at the expiration of the three years.

Appeal from circuit court, Albany county.

*88' Action by Charles W. Little against A. Bleecker Banks to re-' cover damages for breach of contract. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Reversed.

For former report, see 22 N. Y. Supp. 512.

Argued before MAYHAM, P. J., and-PUTNAM and HERRICK, JJ.

Rosendale & Hessberg (Simon W. Rosendale, of counsel), for -appellant.

Mills & Bridge (E. Countryman, of counsel), for respondent.

MAYHAM, P. J.

This action was brought and prosecuted by the plaintiff to recover damages of the defendant for an alleged breach of a contract in writing, made and entered into between the defendant and the state of New York, represented by the state reporter, secretary of state, and comptroller, for publishing the reports of the decisions of the court of appeals for three years from December 14, 1877. The contract was made by virtue of the provisions of chapter 448 of the Laws of 1876, as amended by chapter 422 of the Laws of 1877. Code Civ. Proc. § 211. This section, after conferring upon these state officers the power and authority to make contracts for the. publication of the reports of the opinions of the court of appeals, prescribing generally the kind of publication, and the maximum price at which the volumes may be sold, contains this provision as to the terms of the contract:

> “Bach contract so entered into must provide for the publication of the reports for three years from the expiration of the time specified for that purpose in the last contract.”

The next section provides that:

> “Neither the state reporter nor any other person shall obtain a copyright of the opinions contained in the reports, and the same may be published by any person.”

On the 12th day of December, 1877, the defendant entered into a contract with these state officers. The principal contention on this appeal is as to the liability of the defendant for a failure to comply with the demand of the plaintiff, made, at the defendant’s law-book store in Albany, for the delivery to the plaintiff of certain volumes, of the court of appeals reports, published' by the defendant under this contract, the delivery of which was demanded by the agent of the plaintiff of defendant’s agent on 10 different days between the ,81st of July and the 12th of August,- 1890. For failure to comply with these demands, the plaintiff recovers of the defendant $1,000, being the liquidated damage of $100 for .each of the 10 refusals. The provisions of this contract for which this recovery is sought to 'be upheld read as follows:

> “Tbe said party of the second part further agrees that he will, after publication of any volume of said reports in pursuance of this contract, keep the .same on hand for open and public sale, and will sell and deliver the same, to any and all person or persons desiring to purchase, at and for the price of forty-eight cents per copy for each and every volume, at one or more of the regular law-book stores in the city of Albany, and also at one or more of the regular law-book stores in the city of New York, and that the *89same will be simultaneously placed on sale in each of said law-book stores; and also that he will sell and supply at the designated book stores in Albany, at the contract price, to any and all other law-book sellers, such number of copies of each volume as they shall apply for, said party of the second part, however, not being required to deliver more than one hundred copies of any one volume to any one applicant or firm at one time, or within ten days after the delivery of that number of copies.”

• The contract further provides that for a breach of any of the terms of the contract the defendant shall forfeit and pay to the people of the state the sum of §5,000, as stipulated and liquidated damages, to be recovered by the attorney general or under his direction; and it further provides as follows:

> “And it is further agreed that for any failure on the part of the party of the second part to keep on sale, furnish, and deliver the aforesaid volumes, or any of them, at the price and as hereinabove provided, the said party of the second part shall forfeit and pay, for any and every such failure, the sum of one hundred dollars hereby agreed and fixed upon, not as a penalty, but as the liquidated damages suffered by the person or persons aggrieved thereby; the same to be sued for and recovered by the person or persons aggrieved.”

It is insisted on the part of the defendant that the provisions of the contract above quoted are limited as to the time, both by the statute under which the contract was authorized to be entered into and by the terms of the contract itself, to the three-years limitation in the contract, and that no obligation was imposed thereby after a lapse of more than nine years after the contract had expired by its own .limitation. The language of the provisions of the contract relied upon by the defendant to support his contention is as follows:

> “That it is agreed on the part of the said parties of the first part that the said party of the second, part shall have the publication of said reports for the term of three years from and after December 14, 1877, to be prepared, arid as prepared, by and under the direction of the state reporter; this contract not to include volumes 67 and 68 of said reports, now partly in print.”

The volumes of the reports demanded by the plaintiff, and for a failure to deliver which the action is brought, were hTos. 77, 78, 79, and 80, which were published by the defendant during the three years mentioned in the contract. It cannot be, and is not, con-, tended that this contract authorized or permitted the defendant to publish the reports after the expiration of the three-years limit fixed by that instrument. But it is contended that the three-years limitation related only to the time of publication, and not to the time for which the defendant contracted to sell, and that the provision requiring him to keep the volumes published by him on sale was still operative and in force at the time of the demand of the books by the plaintiff. This is a question of vital importance in this case, and one not easy of solution. It reaches, not only to forfeitures to individuals who are refused their books on demand, but, if such refusal is a violation of the contract, for which an individual action will lie, the same violations would each authorize an action in behalf of the state by the attorney general to recover $5,000 forfeiture to the state in each case. If, therefore, the defendant in this case is liable to the plaintiff for 10 violations of the *90contract, he would be, for the same reason, liable to 10 forfeitures to the state of $5,000 each. If, however, this contract, by a fair construction, leads to such ruinous consequences, it is not the province of the court to intervene to save a party from the result of improvident contracts, or the serious consequences which may follow from their breach; but where the construction is doubtful, and the real intention of the parties obscure, that fact may be taken into consideration in endeavoring to arrive at the meaning and intent of the contracting parties. The state officers who were empowered by the legislature to make this contract acted under special and limited authority conferred on them by the statute under which they were appointed and empowered to act. It expressly limited their power to contract to three years from the expiration of the time specified for that purpose in the last contract. Acting upon that authority, the contract made by these officers for this work, by its terms, terminated on the 14th of December, 1877,—three years from the time of its date. That contract was succeeded by the one in suit, dated on the 14th of December, 1877, the first recital in which was that:

> “The existing contract for the publication of the reports of the decisions of the court of appeals, known as the ‘New York Reports,’ expired December 14,1877, save as to two volumes then partially in print,” etc.

This.contract was succeeded by one made by the same officers, dated December 14,1880, and starting with the following recital:

> “Whereas, the existing contract for the publication of the reports of the decisions of the court of appeals, known as the ‘New York Reports’ expired December 14, 1880, save two volumes then partially in print,” etc.

Thus it will be seen that by the successive action of these state officers they regarded their power to contract in any case as limited by the statute to three years, and at the end of that period, and on making a new contract for the next period of three years, they declare that the previous contract has “expired.” Can it be successfully maintained that if the contract has expired, so that its obligations cease to bind one of the contracting parties, the other party remains bound, without any direct provisions extending its obligations as to him? Both the state, through its officers, and the defendant, seem to have treated this contract as having, expired by its own limitations long before the plaintiff made this demand for the delivery of these books,—the state by having entered into another contract for the same kind of work with Weed & Parsons, and the defendant by having disposed of all the volumes of these books made by him during the three years fixed in the contract as its limit of duration. But it is insisted that it was not, by its terms, limited to any precise time of duration, because, when entered upon, there was an unfinished work by the previous contractor, and, when terminated by the contract with Weed & Parsons, that contract recognized.the existence of two unfinished volumes in the hands of the defendant for completion. It seems to be a sufficient answer to that position that the state officers were limited by the statute to a contract for not more than three years.

*91But, if the necessities of the case compelled them to recognize-the unfinished work of each contractor at the expiration of the-three years’ limitation in the contract, that necessity could not extend the contract indefinitely beyond the time necessary to complete that unfinished work. The law of the contract would still confine its completion within reasonable limits, tested by the amount of unfinished work and the nature of the contract. It would not annul all limits of time fixed by that instrument, and make the-obligations perpetual, or- extend them for a series of years. The-rule seems well settled that, where the time of performance of a contract is not specified in terms therein, the law interprets the contract to demand performance within a reasonable time. Van Woert v. Railroad Co., 67 N. Y. 538; Wright v. Bank, 110 N. Y. 237, 18 N. E. 79; Colt v. Owens, 90 N. Y. 368; Hedges v. Railroad Co., 49 N. Y. 223. We are, on the whole, inclined to the opinion that the fair interpretation of this contract required the defendant to print, bind, and keep on hand, for sale under this contract, at his store, such books as the state reporter provided him with the material to make, during the three-years limitation in his contract, and for such reasonable time as was required to finish the books in process of completion after the expiration of such three-years limit, and dispose of them, or give the public a reasonable time-to obtain them, after completion of such unfinished volumes under the favorable terms of the contract. It is quite apparent from the controversy growing out of this contract that there lurks in it an ambiguity, which alone can be settled by judicious interpretation, probably by the court of last resort. Galled upon, as we-are, to construe this instrument upon its ambiguous provisions,, we should not, unless clearly justified by its provisions, give it an unreasonable interpretation, and such a one as will place one party entirely at the mercy of the other. In Russell v. Allerton, 108; N. Y. 288, 15 N. E. 391, it was held that when there is uncertainty or doubt as to.the meaning of words or phrases used in a contract, in seeking for the intent of the parties, as evidenced by the words used, the fact that a construction contended for would make-file contract unreasonable, and place one of the parties entirely at the mercy of the other, may probably be taken into consideration.. Jugla v. Trouttet, 120 N. Y. 21-28, 23 N. E. 1066; Wright v. Reusens, 133 N. Y. 298-305, 31 N. E. 215. In this case the copyright of all matter received by the defendant from the reporter is prohibited to the state and defendant, and, as we have seen, section, 211 of the Code throws the publication and sale of the volumes covered by the contract open to all, giving the defendant no exclusive privilege or monopoly of the same. It cannot, therefore, be claimed in this case that the time of the duration of this contract can be measured by the duration of a copyright, as the defendant cannot protect himself from competition in that way; and, as the publication and sale of itheir books are open to all, the refusal of the publication by the defendant after the expiration of his contract cannot deprive the public of the privilege of purchasing the-same of other book concerns. We are therefore led to the con*92elusion that the plaintiff had no legal right, at the time of the ■demand of these books of the defendant, to insist upon their delivery, and no cause of action accrued to him to demand and receive this forfeiture, and that the learned trial judge erred in not dismissing the complaint, on the motion of the defendant. Judgment-reversed, and a new trial ordered; costs to abide the event. All concur.