Its a trite saying that parties make contracts and the court discharges its full duty by construing the same according to their intentions. (Gillet v. Bank of America, 160 N.Y. 549.) This saying is especially applicable to the present case.
The plaintiff and the defendant about to enter into a theatrical venture executed a written contract, a copy of which is set forth in the prevailing opinion by which the respondent Amster sought to limit in case of the failure of the venture his loss. The intent to do so is so clearly expressed that it is difficult to see how there can be the slightest doubt about it. After providing that the respondent was to contribute, which he did towards the venture, $3,000, it was expressly stated that his loss if such occurred was limited to $2,500 and in event of such loss $500 of the $3,000 was to be returned to him. If language means anything this is precisely what the parties intended. This is the provision in the contract, viz., "it being expressly agreed between the parties hereto that in the event that the run of said play upon the English speaking stage is not longer than four weeks, or that the run of said play is limited to four weeks, and if the gross receipts for said play during said fourth week does not amount to Nine thousand ($9,000.00) dollars, then and in either of said events, the party of the second part" (the plaintiff), "must return to the party of the first part," (the respondent), "the sum of Five hundred ($500.00) dollars of said Three thousand ($3,000.00) dollars, paid in as aforesaid."
The run of the said play upon the English speaking *Page 486 stage did not continue for four weeks. The gross receipts for said play during said fourth week did not amount to nine thousand ($9,000) dollars. The play only ran three weeks. Therefore, according to the express provisions of the contract quoted, the respondent's loss incurred by the venture was limited to twenty-five hundred ($2,500) dollars, and it cannot by a forced and unwarranted construction make the respondent liable for twenty-five per cent of the loss. If it can be done then the court makes a contract which the parties themselves did not intend to make.
I am of the opinion that the judgment appealed from should be affirmed, with costs.
HISCOCK, Ch. J., CARDOZO, POUND, ANDREWS and LEHMAN, JJ., concur with CRANE, J.; McLAUGHLIN, J., reads dissenting memorandum.
Judgments reversed, etc.