82 N.Y.S. 42 | N.Y. App. Div. | 1903
The action is brought to recover for a breach of a contract in writing and under seal. By this contract the plaintiffs agreed to make of tin a certain purse frame known as Style No. 27 B.,. and to deliver the same to the defendant for a price not to exceed one dollar and ten cents per gross of said frames, and to add a profit of twenty-five per cent; that the defendant should take all of the said frames that the plaintiffs should make; and the plaintiffs were not to inform any person or firm, and not even to sell to any other person or firm, unless they should charge a profit of not less than fifty per cent. The plaintiffs agreed that they would commence to deliver the said frames not later than within six weeks from the day and date of the contract, and that in case they should not .be able to fill their part of the contract, they should not be subject to a suit for a breach thereof. The complaint alleges that it was further agreed by and between the plaintiffs and the defendant herein that the contract set out in paragraph 2 thereof was to cover and extend over a period of one year from the date thereof, and that the price of the purse frames in said agreement referred to shall be one dollar and thirty-two cents per gross.
There is no allegation that the plaintiffs ever manufactured any of these articles or tendered them to the defendant, the allegation of a breach being that on or about the 1st of November, 1900, the defendant refused to live up to said agreement and comply with the provisions thereof, and since then refused to take from the plaintiffs merchandise by the plaintiffs for the defendant manufactured in pursuance of said agreement, and in all respects continues to refuse to comply with the agreement by her to be performed.
The agreement being under seal, a consideration was presumed, •and while the parties were not precluded from showing that there was actually no consideration, the lack of consideration was an affirmative defense which must be pleaded by the party seeking to avoid the performance of the contract on that ground. Upon a demurrer to the complaint, therefore, a consideration must be presumed. The demurrer below was sustained upon the ground that the contract alleged was void for want of mutuality, as the plaintiffs nowhere agree to manufacture any given number of articles, or to manufacture any at all. In the contract the plaintiffs agree to
It follows that the judgment appealed from should be affirmed, with costs, with leave to plaintiffs to amend on payment of costs in this court and in the court below.
Van Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.
Judgment affirmed, with costs, with leave to the plaintiffs to amend on payment of costs in this court and in the court below.