191 A.D. 33 | N.Y. App. Div. | 1920
The complaint contains two counts. In the first it is alleged that the plaintiff is a domestic corporation engaged in manufacturing garments from knit goods of the kind manufactured by the defendant, which .is also a domestic corporation; that on the 17th of January, 1917, defendant and one Isidore Meyer-son made an agreement for the benefit of the plaintiff, a copy of which is annexed to the complaint as Exhibit A; that it was contemplated by the parties thereto that the garments to be made by the plaintiff would be made exclusively of merchandise bought of the defendant; that the goods specified in paragraph 6 of the agreement have been duly ordered and delivery demanded by the plaintiff but have not been delivered by the defendant which has had ample time therefor and was able to make delivery thereof; that defendant has refused to comply with and has repudiated the contract; that the plaintiff and said Meyerson have duly performed the agreement on their part and that plaintiff has sustained damages in the premises in the sum of $5,000. In the second count it is alleged that upon the execution of the contract plaintiff immediately began ordering goods thereunder but the defendant failed and refused to furnish them and delivered goods of such inferior quality and workmanship that they could not be used for the purpose intended which was well known to the defendant and thereby plaintiff was unable to fill its orders with its customers and the goods were returned to it by its customers on the grounds stated and the plaintiff has lost profits, customers,
The agreement, Exhibit A, was made January 17, 1917, between defendant and Meyerson. It recites that the parties were interested in the plaintiff as stockholders and creditors and that Meyerson was desirous of purchasing of defendant the common stock of the plaintiff and defendant was desirous of selling to plaintiff herein merchandise manufactured by it. The defendant agreed to assign forty shares of common stock of the plaintiff to Meyerson and to release any claims against the plaintiff; and Meyerson agreed to pay for the stock $10,000; $1,000 in cash and the balance in notes, indorsed by his wife, and the defendant agreed to take renewal notes with like indorsements and further renewals and it agreed to save Meyerson and his wife harmless from liability on the notes so long as they complied with the agreement. It was agreed that twenty-six shares of the stock should be deposited as security for the notes and for any amount owing from the plaintiff to the defendant for merchandise received from the defendant. By the 5th paragraph defendant agreed to extend to the plaintiff sixty days’ credit from December 28, 1916, to the extent of $2,500 and that plaintiff should have a standing credit with defendant in that amount throughout the period covered by the contract which was five years or until the termination thereof as therein provided. By the 6th paragraph defendant agreed as soon as possible after receiving orders to deliver to the plaintiff on account knit cloth of specified shades and it was therein provided that plaintiff ordered and agreed to take from defendant and defendant agreed to deliver to it as soon as possible in the usual course of business specified quantities of goods at specified prices and defendant agreed to deliver to the plaintiff on its order certain other goods at a specified price and that all other merchandise should
The learned counsel for the respondent now admits, however, that the action is not maintainable on the theory that the promise was made for the benefit of the plaintiff and endeavors to sustain the order on the theory that the plaintiff was a party to the contract and that it was in effect a tripartite agreement.
The order should, therefore, be reversed, with ten dollars costs and disbursements, and the plaintiff’s motion for judgment on the pleadings should be denied, with ten dollars costs.
Clarke, P. J., Smith, Page and Merrell, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.