George B. Hand, Respondent, v. Thomas H. Brooks, Appellant, Impleaded with William H. Shepard

George B. Hand, Respondent, v. Thomas H. Brooks, Appellant, Impleaded with William H. Shepard. Contract to insert an advertisement to be paid for by a .credit on the price of ‘work to be done — time not important — assignment of the publishers interest. A contract which provides that, in consideration oí the insertion in a book of an advertisement of a firm, and of the delivery to it of a specimen copy of the hook, the sum of §240 shall become “available as a credit and is to be deducted from our price for work other than we have estimated on, or contracted for, prior to the date hereof," and that, should the work not be given the firm, it is absolutely acquitted of any charge for the advertisement, binds the firm, upon the receipt by it of the book containing the advertisement, to perform such work in its line as shall be offered by the publisher of the book. The fact appearing in the complaint that ten months elapsed between the execution of the contract and the publication and delivery of the book, does not make the complaint demurrable, since it cannot be presumed that this period was an unreasonable one ; nor does the fact that the demand for the performance of work by the firm was not made until more than four years after such delivery, since there is no limit fixed in the contract as to the time when such demand might be made. An assignee of the publisher acquires the same fight under such a contract as his assignor had. Appeal by the defendant, Thomas H. Brooks, from an interlocutory judgment of the Supreme. Court in favor of the plaintiff, entered in the office of the clerk of the county of - New York on the 22d day of April, 1897, upon the decision of the court rendered after a trial at the New York Special Term overruling his demurrer to the complaint, with notice of an intention to bring up for review upon such appeal an order made at the New York Special Term and entered in said clerk’s office on the 21st day of April, 18.97, overruling said demurrer. .The complaint alleges that the following contract was executed by the defendants, composing the firm of T. H. Brooks & Co., on or. about the day of. its date:. “ Cleveland, Ohio, 12/9/1890. . “ In consideration of the insertion of an Advertisement to occupy one page, the copy for which is attached hereto in the book descriptive and illustrative of the Arcade Building, Cleveland, Ohio, ■ we promise to pay to the order of E. S. Hand, Two Hundred and forty Dollars, payable as over on publication of and the delivery to us of a specimen copy of same. It is agreed that the whole agreement between the parties is contained in this contract. $240. payable as over . . . T. H. BROOKS & CO. “ The within named amount is available as a credit and is to be deducted from our price for work,, other than we have estimated on, or contracted for prior to the date hereof. “ In the event of the said work not being given us, we are to be absolutely acquitted of any ' charge for the advertisement herein provided.” The complaint further alleges that thereafter the advertisement was duly inserted in the book specified, and a copy duly delivered to the. defendants in accordance with the contract on or about October 7, 1891; that Elwood S. Hand duly assigned the contract to the plaintiff about March 26,1892; that shortly after such assignment the plaintiff duly notified the defendants thereof, and the latter thereupon, on March 28,1892, refused to perform any work for him thereunder; and that thereafter, and about February 18,1896, “the-plaintiff duly, offered to defendants work other than they had estimated on. or contracted for prior to the date of said contract and duly demanded" that they perform said work, to wit, plaintiff duly demanded that the defendants manufacture for plaintiff architectural iron work, "steapi heating apparatus, &c., of the value of about. $250, but that defendants refused to perform the work so offered or any part thereof.” Judgment is demanded for $240, with interest, from March 28, 1892. John Brooks Leavitt, for the appellant. Charles De Hart Brower, for the respondent. [MAJORITY — Barrett, J.:] Barrett, J.: The appellant contends that the plaintiff’s assignor did not perform the contract upon his part within a reasonable time. The contract was made on the 9th day of December, 1890, and the book was delivered to the defendants on or about the Jth day of October, 1891. Whether the book was thus delivered within a reasonable-time depends upon circumstances not disclosed by the complaint. We cannot say, as matter of law, that the book should have been completed and published in less than ten months. For aught that, appears, that length of time may well have been occupied in its preparation, even with the fullest diligence. In other words, no presumption can he indulged- in upon the naked averments of the complaint. The plaintiff in effect avers performance on his part when he avers that the advertisement was duly inserted in the book and that the book was duly published and a specimen copy duly delivered in accordance with the contract. If any presumption is to be-indulged in, it is that the defendants accepted and retained the hook without complaint as to the length of time which was occupied in its preparation. In this view of the case the plaintiff has substantially averred performance. Both sides agree that the contract is analogous to a contract payable in goods. It is in effect a contract whereby, for a good consideration, one party agrees to perform for the other party work of the value of $240. The full consideration was given when the plaintiff’s assignor delivered the book to the defendants. Upon the receipt by the defendants of that book they became bound to perform such work in their line as might be offered to them, and to deduct the sum specified in the contract, to wit, $240, from the price payable for such work. , It is an erroneous view of the bargain that the plaintiff’s assignor, or the plaintiff himself, was bound to proffer such work to the defendants within a reasonable time after the making of the contract, or, at least, after delivery of the book. Upon the receipt of the consideration Specified in the contract, the defendants, became bound, Upon demand, to do what they had engaged to do. There was no limit as to the time when the plaintiff’s assignor might make the demand, except, of course, the limit prescribed by the Statute of Limitations. There is nothing in the appellant’s- remaining point, that the defendants’ refusal to perform related only to the plaintiff as assignee of the contract, and not to the assignor. The contract was assignable in the ordinary 'way, and was in no sense limited to the personality of the assignor. The - assignee took under .his assignment the ■same rights as the assignor, and a refusal to perform as to him was ..as much a breach of the contract on the defendants’ part as would have been a refusal to perform as to the assignor. - We think the demurrer was ■ properly overruled, and that the interlocutory judgment should be affirmed, with costs, and the appeal, ■so far as it seeks to review the intermediate order, should be dismissed. Van Brunt, P. J., Rumsey, Williams and Patterson, JJ., concurred. Judgment affirmed with costs, and appeal, so far as it seeks to "review the intermediate order, dismissed.-