25 N.Y.S. 1036 | N.Y. Sup. Ct. | 1893
This case was well disposed of at the special term, and the argument supporting the disposition made was so fully presented as to render further consideration of the question discussed unnecessary. The appellant now makes a point which does not seem to have been addressed to the special term, and, in order to meet it, it will be necessary to state briefly the conclusion reached by that court. The pleader attempted to allege two distinct causes of action, founded on two separate contracts; but, while there were two contracts, they were in the same form, and but one need be quoted. As alleged, it reads:
“On or about the 10th day of April, 1892, Joseph Rafolovitz and Son entered into an agreement or contract whereby and wherein the defendant promised and agreed, in consideration that said Joseph Rafolovitz and Son would purchase and sell a certain cigarette manufactured by defendant, that he, the defendant, would allow and pay them as a compensation or commission for said purchase of cigarettes twenty cents on every thousand oí' said cigarettes manufactured by defendant and purchased by said Joseph Rafolovitz and Son between the 10th day of April and the 1st day of October, 1892.”
It seems that Joseph Rafolovitz & Son did thereafter purchase nearly 200,000 cigarettes, upon which purchase the defendant paid the promised commissions. Then it refused to sell to plaintiff any more cigarettes; hence this action.
The court held that there was no mutuality of contract, and therefore not enforceable; that it would have been otherwise had the plaintiff bound himself to have purchased a given quantity of cigarettes; that under the agreement as alleged it was optional with the plaintiff to purchase cigarettes or not. If, after making it, he had refused to take any, or, after taking a few thousand, had declined to purchase others, the defendant could not have compelled him either to take cigarettes or respond in damages for not doing so; and as he made no promise, there was no basis for a consideration for the promise of the other party to the alleged agreement. In support of such position the court cited Railway Co. v. Done, 43 N. Y. 240, and Hurd v. Gill, 45 N. Y. 341. Appellant insists that Wells v. Alexandre, 130 N. Y. 642, 29 N. E. Rep. 142, upholds the agreement which he alleges, but we do not so understand it. There the plaintiff proposed to furnish defendant’s steamers, naming them, with coal, at a price named, for the period of one year. The defendant accepted the offer, and thereafter plaintiff furnished to the defendants such quantity of coal as was required for the use of the steamships, until the defendants sold them. It was held that the proposal and acceptance, both of which were in writing, constituted a valid contract; there being entire mutuality, because one promised to take and pay for all that the other agreed to sell and deliver. The principal contention of the defendant in that case was that the contract was one for successive deliveries of coal, to be made only when the defendant should give the plaintiff notice that a delivery was required; and, as notice had not been given, the defendants were not in default. It was held that while, at the date of the agreement, the quantity