31 How. Pr. 196 | N.Y. Sup. Ct. | 1866
Lead Opinion
The agreement between the parties was properly admitted. It was duly acknowledged by one of the plaintiffs’ firm, and by the defendant, to have been properly signed, and was attested by a subscribing witness at then* request. It is clear that the partners authority to execute the sealed instrument was ratified by the subsequent acts of the plaintiffs under it, even if there was
The agreement was mutual—defendant agreed to deliver to plaintiffs “ all the blankets of his manufacture, to be sold by them.” This must be fairly construed to mean that the plaintiffs agreed to sell the blankets which defendant should deliver them for that purpose, and the parties mutually agree upon the commission for such sales. The agreement was not in restraint of trade. No restriction is put upon the defendant; he may manufacture as largely as he will. Of course it was for the interest of both parties to manufacture and sell if a profit could be made.
The agreement did not permit the defendant to sell blankets of his manufacture himself without breach of the agreement ; he had agreed to “ consign exclusively ” to the plaintiffs “ all the blankets of his (defendant’s) manufacture.”
If the agreement is established and is not void, and did not permit the defendant to sell directly blankets of his manufacture, then as the defendant did sell the blankets as specified in the complaint, it has been broken, and some defense must be made to it or the plaintiffs are entitled to recover. The paper must be held to contain the true agreement between the parties. All preceding and contemporaneous agreements were merged into the writing, and it was therefore right to reject the evidence offered as to a previous parol agreement in addition to the writing itself. There remains but the alleged promise by the plaintiffs to be defendant’s sureties upon a contract to be obtained of the United States Government by defendant to sell his blankets to the Government. If this fact is true it is no defense.
The plaintiffs were not bound to guaranty that the defendant would make and deliver to the Government the blankets within the time and in the manner called for by the Government. They had the right to recede if they had promised. It can have no effect on this agreement. The plaintiffs, upon the whole case, were entitled to recover. There seems at the trial to have been no objection as to the amount of the recovery. A verdict was directed for seven and a hah
Judgment affirmed with costs.
Concurrence Opinion
I concur with Judge Barnard. When the plaintiffs told defendant that they would not enter into a guaranty of his contract to the Government, and that he might meet other parties who would carry it out the best way he could, the subject of the defendant’s contract with the plaintiffs in respect to the consignment and sale of his manufactures was not under consideration. The defendant was urging the plaintiffs to become' his sureties ; they were unwilling to do so ; represented to him the great danger of loss by the depreciation of Government pay. The defendant still urged them; stated that he had become bound himself by signing a contract with the Government, and had purchased sixty thousand dollars worth of stock, which he must pay for in sixty or ninety days, and that he depended on the plaintiffs for the money. Then the plaintiffs refused to sigh the bond, and told him in substance that he might get other parties to become his sureties in the best way he could.
The plaintiffs, so far as the case shows, were under no obligation to the defendant to advance him money, or to become his security upon the contract with the Government. No doubt the defendant expected them to do so, and it is very probable that they had given the defendant incouragement that they would aid him in the manner he desired; but the contract between the parties did not call for it. The contract, however hard the rule, must be our guide. I can land nothing in this evidence which indicates an intention on the part of the plaintiffs to release the defendant from the performance of his agreement with them. What they said or did was not inconsistent with the performance of the contract with the defendant on their part, nor with insisting upon a like performance by him.
Dissenting Opinion
I dissent upon the point as to the right of the plaintiffs to commissions on the goods sold to the Government. From the evidence, their consent to defendant selling to the Government might be inferred. If not, still there was evidence enough to submit to the jury the question whether the plaintiffs did not give such consent.