143 N.Y.S. 1046 | N.Y. App. Div. | 1913
Lead Opinion
The sole question in this case is whether or not the contract between the parties was void for lack of mutuality. Such a lack exists where one is bound and the other is not.
In the present case the plaintiff agreed to purchase and accept from the defendant a specified number of automobiles, depositing a sum of money to be credited as part payment, in advance, of thirty-five dollars on each automobile accepted. Nowhere in the contract does the defendant agree to sell and deliver the automobiles, or any of them, unless a schedule of delivery dates may be considered such an agreement. If it may be, however, its force is entirely destroyed by the following clause which provides as follows: “ In the event that the Company shall fail to deliver any one or more automobiles in accordance with the foregoing schedule, it may at its option return the Agent’s deposit on such car or cars, or deliver such car or cars as soon thereafter as it reasonably can; it being distinctly understood and agreed, however, that no liability whatsoever shall attach to or be asserted against the Company in case of its failure to deliver any of said automobiles for any cause whatsoever.”
By this clause it was left entirely optional with defendant whether or not it would deliver any automobiles at all, and if it refused to deliver any it became subject to no penalty or damages. It seems to me that it would be difficult to find a clearer case of a contract imposing an obligation on one party and no obligation whatever on the other.
I am unable to see that the appointment of plaintiff as defendant’s agent cured the lack of mutuality, because the position of agent to sell automobiles was an empty thing unless
The determination of the Appellate Term should be affirmed, with costs.
Dowling and Hotchkiss, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented.
Dissenting Opinion
This action was brought in the Municipal Court. The complaint alleged that on the 25th of August, 1910, the defendant received from the plaintiff the sum of $700 to the use of the plaintiff; that thereafter the defendant furnished the plaintiff six automobiles and applied on account of the purchase money thereof $210, part of the said sum of $700, and no more; and that there still remained in the hands of the defendant for the use of the plaintiff the sum of $490, payment of which had been demanded, and for which amount the plaintiff asked judgment. The case was tried before the justice without a jury, who decided in favor of the plaintiff, and judgment was entered thereon. Upon appeal the Appellate Term affirmed that judgment and from that determination the defendant appeals.
It appeared upon the trial that on the 25th day of August, 1910, the plaintiff and defendant entered into a written contract by which, in consideration of the mutual covenants contained and the sum of one dollar, the parties agreed as follows: The defendant granted to the plaintiff permission to sell its automobiles in the town of Waterbury in the State of Connecticut during the continuance of the contract; the plaintiff accepted the right of sale aforesaid and agreed to observe and be bound by each of the following covenants and stipulations, which regulated the terms and conditions under which the plaintiff as agent for the defendant could sell these automobiles. The contract further provided that the plaintiff ordered and agreed to purchase and accept from the defendant the following quantity of the said automobiles and further agreed to pay the following list or catalogue price therefor less the discount set opposite the same. Then follows a net price f. o.b. New York of $650 (twenty) Hupmobiles, and sale price f. o. b. New York, $775. The agent further agreed to deposit with
The plaintiff has been allowed to recover on the ground that this contract, being unilateral, imposed no obligation upon the defendant and, therefore, a breach thereof could not be asserted as against the plaintiff to prevent the return of the amount paid by the plaintiff which was to be applied to the purchase of the cars which had not been ordered by plaintiff or delivered. I do not think that this is a unilateral contract. The defendant appointed the plaintiff its agent to sell these automobiles in the town of Waterbury, Conn. This appointment as agent, although subject to be revoked by the defendant, was accepted, and when the plaintiff actually acted under it was certainly a consideration for the obligation of the plaintiff to act as agent and to purchase a certain number of cars to be used in the business for which he was employed. The plaintiff actually agreed to purchase a certain number of these
It thus appeared from the undisputed testimony that the plaintiff continued in the employ of the defendant from the 25th of August, 1910, until the 22d of January, 1912, during the whole time that the contract was to continue; that he received whatever benefit it was to be an agent of the defendant at Waterbury, Oonn.; that he received six cars for which he was allowed a discount of fifteen per cent and that he did not take, accept or complete the purchase of the remainder of the twenty
I think, therefore, the judgment appealed from should be reversed and, as on the undisputed facts the plaintiff is not entitled to recover, the complaint should be dismissed.
Laughlin, J., concurred.
Determination affirmed, with costs and disbursements.