152 N.E. 120 | NY | 1926
This action is upon a written contract which the plaintiff, respondent, interprets as a contract of sale. He, therefore, demands from the defendant $40,000 for refusal and failure to take and pay for during a period of years a certain grade of marble known as jura yellow. The defendant, appellant, construes the contract as one of agency with no obligation to purchase the quantities stated therein.
The motion upon the pleadings to dismiss the complaint brings up for consideration the meaning of this contract. It is, therefore, necessary to set forth the contract in full, to determine what the parties intended by it. *379
"NEW YORK, Nov. 25th, 1921. "AGREEMENT "Between
"Dr. Kaempfer Company, Gliesmarode-Braunschweig, Germany
"and
"Tompkins-Kiel Marble Company, New York City, N Y
"In consideration of one dollars ($1.00) in hand paid receipt of which is hereby acknowledged, an agreement is entered into between the Dr. Kaempfer, Gliesmarode-Braunschweig, Germany, or his successors, and the Tompkins-Kiel Marble Company, New York City, N.Y. Whereby Dr. Kaempfer Company appoint the Tompkins-Kiel Marble Company sole sales agents of their Jura Yellow Light and Jura Yellow Dark, which is quarried in Weissenburg, Bavaria, in the United States, Dominion of Canada and Cuba.
"PRICE:
"Rough quarried blocks $42.50 per cubic meter, including German export duty, FOB S/S Hamburg or Rotterdam.
"DURATION:
"This Contract to be in force for a period of five (5) years with the privilege of renewal if agreeable to both parties for an additional five (5) years.
"QUANTITY:
"In the event that the Tompkins-Kiel Marble Company do not order material as below mentioned the Dr. Kaempfer Company have the right to cancel said contract at the end of each year in which this quantity is not taken.
"QUANTITY TO BE TAKEN EACH YEAR AS REQUIRED:
1st year 750 cubic meters
2nd " 1,000 " "
3rd " 1,250 " "
4th " 1,500 " "
5th " 1,750 " "
*380
"TERMS:
"Four (4) months Trade Acceptance upon presentation of Bill of Lading and invoice.
"CONDITIONS:
"It is understood and agreed that the Tompkins-Kiel Marble Company will have the exclusive sale of this product in the above mentioned territory and the Dr. Kaempfer Company will not sell directly or indirectly to anyone in the above mentioned territory.
"TOMPKINS-KIEL MARBLE COMPANY "(sgd.) CHRISTIAN GEORGES, JR., "Vice-Pres. "Accepted: "MORRIS KAEMPFER "Authorized Representative "Witness to "BOHUNNL W. SUDLO."
There would, of course, be no appeal and no dissents in the Appellate Division unless there were forceful reasons to sustain both contentions. Our decision, therefore, that the contract is one of agency means solely that the reasons for this view appear the more convincing to us. The plaintiff's assignor, Dr. Kaempfer Co., appointed the defendant "sole sales agents of their Jura Yellow Light and Jura Yellow Dark in the United States, Dominion of Canada and Cuba." The contract is for a period of five years with the privilege of renewal for an additional five years. The agreement does more than specify the quantity which is to be taken each year; it refers to the quantity each year "as required." In the event that the number of cubic meters specified is not taken in any one particular year, the other party has the right to cancel the contract. The defendant was also given the exclusive sale of this product in the territory mentioned. All these facts indicate in our judgment that the defendant was constituted sales agent *381 of the Dr. Kaempfer Co., with the right to take specified amounts of marble during any one of the five years, with the privilege of exclusive sale within their territory. The Kaempfer Co. had the right to cancel the agency in case a sufficient amount of marble was not taken.
This meaning of the agreement seems to us more reasonable than to suppose that the defendant absolutely bound itself for a period of five years to take the increasing number of cubic meters specified for delivery each year, with the privilege of renewal for five years longer.
The orders below should be reversed, with costs in all courts, and motion granted, with costs and ten dollars costs of motion.
The question certified should be answered in the negative.
HISCOCK, Ch. J., CARDOZO, POUND, McLAUGHLIN, ANDREWS and LEHMAN, JJ., concur.
Ordered accordingly.