App. Div.] Second Department, June, 1920. costs and disbursements, and the petition be denied, with fifty dollars costs. JENKS, P. J., MILLS, BLACKMAR and KELLY, JJ., concur. Order reversed on reargument, with ten dollars costs and disbursements, and petition denied, with fifty dollars costs. FREDERICK J. RILEY, Appellant, v. ROBERT GORDON, Respondent. Second Department, June 25, 1920. Slander words not slanderous per se pleading — innuendo complaint stating cause of action. Although spoken words may not be slanderous per se their meaning to those in whose presence and hearing they were spoken may be considered and a plaintiff may allege matters of inducement which give a defamatory meaning to words otherwise innocuous. Complaint in an action for slander examined, and held, sufficient as against a demurrer in that it sufficiently alleged matters which indicated that the persons who heard the defendant's words knew that he charged the plaintiff with the crime of stealing a check and forging a signature thereto. APPEAL by the plaintiff, Frederick J. Riley, from an order of the Supreme Court, made at the Richmond Special Term and entered in the office of the clerk of the county of Richmond on the 7th day of September, 1918, sustaining defendant's demurrer to the third amended complaint. Walter S. Kennedy, for the appellant. Daniel S. Murphy, for the respondent. BLACKMAR, J.: The defendant demurred to a complaint in slander on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained and the plaintiff appeals. The alleged defamatory words spoken concerning the plaintiff were as follows: You cashed that cheque in Batchellor's the night you came up from Ulmer Park. I had a man from Batchellor's go all through the building and he picked you out as the man Second Department, June, 1920. [Vol. 192. who cashed the cheque. It is circumstantial but it's enough for a jury. I didn't expect you to admit it. Williamson didn't either and he's doing five years now. You are through. Get your hat." These words upon their face are not slanderous. They do not charge plaintiff with the commission of a crime, nor with having a loathsome disease, nor do they injure him in his business. But the question always is directed to the meaning which the words conveyed to those in whose presence and hearing they were spoken; and matters of inducement may be alleged which give a defamatory meaning to words otherwise innocuous. (Odgers Lib. & Sland. [5th ed.] 128, 129; Van Heusen v. Argenteau, 194 N. Y. 309; Fry v. Bennett, 5 Sandf. 54; Townsh. Sland. & Lib. [4th ed.] § 308; McGregor v. Gregory, 11 M. & W. 287; Grand v. Dreyfus, 122 Cal. 58.) The complaint alleged in substance that both the plaintiff and the defendant were employed by the Western Electric Company; that a check drawn by such corporation to one other than the plaintiff was stolen from the payee and, by means of a forged signature, was cashed and the true owner deprived of its use; and that these facts were known to the persons in whose presence the words were spoken. Under these circumstances the spoken words sustain the innuendo that they charged the plaintiff with a crime. In the law of slander, as well as in the law of contracts, matters known to all the parties give a meaning to spoken words. If the speaker and his hearers knew that a check had been stolen and cashed by means of a forged signature, the words are plain enough. The words "It is circumstantial but it's enough for a jury," and the statement that if plaintiff denied the charge so did another employee, who was then doing five years, indicate plainly enough, to one knowing the facts alleged as inducement, that defendant was charging plaintiff with a crime. JENKS, P. J., MILLS, KELLY and JAYCOX, JJ., concur. Order reversed, with ten dollars costs and disbursements, demurrer overruled, with ten dollars costs, and defendant given leave to withdraw the demurrer and to answer within twenty days on payment of costs. App. Div.] First Department, July, 1920. SAMUEL W. TRAYLOR, Appellant, v. CRUCIBLE STEEL COмPANY OF AMERICA, Respondent. First Department, July 2, 1920. Contracts exemption from liability for failure to perform caused by strikes, fires, act of God or other causes beyond reasonable control — failure to perform due to inefficiency and delay in securing materials-parol evidence -principal and agent contract for commissions on orders secured and accepted — right of agent to commissions on orders accepted but canceled on failure of principal to fill. A provision in a contract exempting a party from liability for non-performance if failure to perform was caused by "strikes or fires or act of God or other causes beyond their reasonable control" does not relieve from liability for failure to perform where the failure was due to inefficiency in management and lack of knowledge of methods of manufacture or to difficulty or d lay in securing material. 66 The phrase or other causes beyond their reasonable control," following the specification of "strikes or fires or act of God," refers to some extraordinary cause and not to those problems which must naturally be anticipated as to performance. There is no ambiguity in the contract which makes competent parol evidence. 66 Under the contract between the parties whereby the defendant was to pay the plaintiff a stated commission on the gross amount of contracts for war materials secured by the plaintiff which the defendant accepted, and which provided that the contracts should be submitted for acceptance and after acceptance we shall assume all responsibilities and obligations in connection therewith," and which provided that the commissions should be paid "as and when payments are made to us," the plaintiff was entitled to commissions on the gross amounts of all contracts secured by him and accepted by the defendant though the persons ordering the materials canceled the contracts on the failure of the defendant to perform them. CLARKE, P. J., dissents. APPEAL by the plaintiff, Samuel W. Traylor, from a 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 day of , upon the verdict of a jury, and also from an order entered in said clerk's office on the day of denying a motion for a new trial. First Department, July, 1920. [Vol. 192. Owen J. Roberts of counsel [Dennis & Buhler, attorneys], for the appellant. Frederic R. Coudert of counsel [Howard Thayer Kingsbury with him on the brief; Coudert Brothers, attorneys], for the respondent. SMITH, J.: The plaintiff was in 1915 a manufacturer of heavy machinery at Allentown, Penn., and had an office in the city of New York. He had manufactured some small shells for the British government. In February of that year he made a contract with defendant for specified commissions upon certain contracts which he should obtain for defendant for the manufacture of war material which might be used by the British, French, Russian or Italian governments. The contract was contained in a letter written to plaintiff by defendant, dated February 10, 1915, which letter reads as follows: "2 Rector Street, NEW YORK, February 10th, 1915. "S. W. TRAYLOR, Esq., New York City, New York: "DEAR SIR.-Confirming our talk with you of this date, it is hereby agreed that you shall be our exclusive representative for the sale of war material such as now is or may be used by the British, French, Russian or Italian Governments, or either of them, and can be manufactured by us. "It is understood and agreed that all contracts are to be submitted to us for approval, before they shall be accepted, and after acceptance, we shall assume all responsibilities and obligations in connection therewith. "In consideration of your services, we agree to pay you as compensation seven and one-half per cent. (71%) of the gross amount of said contract, which said compensation shall be paid to you as and when payments are made to us, and 71% shall be paid to you regardless of whether or not said contracts are placed with us direct or through you. This contract shall not apply to shell of less than 4.5" calibre, or to quotations contained in letter bearing even date herewith up to March 10th, 1915; after March 10th, 1915, the shell enumerated in said letter shall be considered a part thereof. App. Div.] First Department, July, 1920. "It is understood and agreed that you shall use your best endeavors to negotiate and secure business for us and that you shall pay your expenses and costs of your cables and we shall pay for all cables sent by us. "This contract shall continue in full force and effect until peace shall have been declared between the nations now at war in Europe, either party hereto, may, however, cancel this contract by giving four months' notice in writing to the other. Very truly yours, Accepted: "CRUCIBLE STEEL CO. OF AMERICA, HERBERT DUPUY, Chairman. "S. W. TRAYLOR, "February 11th, 1915." Thereafter he procured eight contracts from the British government for the manufacture of various sized shells. Some of these were in form of orders which were accepted by defendant. But upon their acceptance they became contracts which were without doubt contemplated by the agreement between plaintiff and defendant. Two of those contracts were fully performed. The other contracts were all to have been performed on or before December 31, 1915, and upon the inability of defendant to tender performance upon the date specified in the contract defendant's time to perform was extended to December 30, 1916. Upon the extended date the defendant made default and the contracts were canceled by the British government. Upon the contracts so far as they were performed defendant has been paid in full, and had before the commencement of the action paid to plaintiff a part of the commissions due to him. This action was brought to recover seven and one-half per cent commissions upon the gross amount of the contracts including the unpaid commissions upon payments made to defendant by the British government. The justice stated to the jury that three questions were to be determined in arriving at a verdict: First, was it intended by the parties to provide for payment of commissions upon uncompleted contracts upon which the defendant received nothing from the British government? Second, did the defendant use all the efforts within its reasonable control to |