Opinion
January, 1895.
Philo P. Safford, for respondent.
James H. Wood, for appellant.
This is an action for damages for breach of contract. Plaintiff agreed to do the press work, binding and mailing of the Jewelers' Review for a period of one year at certain prices named in the contract, and to allow defendant a credit of $700 on certain presses, sold by defendant to plaintiff, payment for the work to be taken out of this $700 credit as long as it lasted, and defendant contracted to give the press work and binding to plaintiff for the same period, at prices named.
The agreement was carried out by both parties until within a few weeks of the end of the year, when defendant neglected and refused to give the work to plaintiff, and plaintiff, therefore, sues to recover damages for defendant's breach. The pleadings were oral, defendant's answer a general denial. The justice gave judgment for plaintiff, and defendant appeals. It claims that there is no evidence that it had not paid the damages, or that the credit of $700 had been exhausted. These points were not raised upon the trial. The motion to dismiss at the close of plaintiff's case was based solely upon the ground that defendant was not bound to give plaintiff the papers or forms "at any hour during the period of time." It is, therefore, not proper to raise these questions for the first time upon appeal, especially when the case was apparently tried upon the assumption that the credit had been exhausted, and that fact is clear from a consideration of the monthly expenses of publication. If the damages had been paid it was an affirmative defense which should have been alleged and proved, and was not admissible under a general denial. Lent v. N.Y. M.R. Co., 130 N.Y. 504, and cases cited. The amount of damages was sufficiently proved, and there is evidence that plaintiff was ready and willing to perform the contract on its part.
The question of the mutuality of the contract is not worthy of consideration. A reference to it shows that its terms are clear, and the consideration moving between the parties good and valid.
Appellant also contends that the respondent did not mail the papers at or before the time agreed upon in the contract, and also that it required the appellant to complete its forms by Saturday morning of each week, which if done would have excluded late news important to be inserted in each issue. Both of these were also affirmative defenses, being excuses for nonperformance, evidence of which could not be given under a general denial. Abbott's Brief on the Pleadings, § 822, and cases cited.
This judgment should, therefore, be affirmed, with costs.
BISCHOFF, J., concurs.
Judgment affirmed, with costs.