| N.Y. App. Div. | Jul 1, 1897
The agreement upon which the action was brought was made March 14, 1894, and provided that it was mutually agreed between the parties in substance: First, that the plaintiff granted to the defendant the exclusive agency for the sales of its patterns for a certain locality for two years, and until terminated as provided in the agreement, and agreed to consign such a sufficient stoclc of patterns as might be mutually agreed upon, not to exceed' $1,000 at retail prices, including a sufficient quantity of new monthly patterns, and to allow the defendant fifty per cent commission on sales, etc.
Second. That the defendant would purchase for gratuitous distribution fashion sheets and-handy catalogues published by plaintiff to the amount of $105 per annum, at $10 per 1,000 for such sheets and $25 per 1,000 for such catalogues, and to pay freight, expenses or postage on all goods, publications and patterns, keep pattern stock in. good order and give due attention to sales, pay for purchases and pattern sales, less commission, each month under inventories of patterns on hand, once a year, not assign agency or change location except on written consent of plaintiff, not sell or deal in other patterns, or purchase from other parties than plaintiff, nor sell at other prices than those fixed by plaintiff, and permit plaintiff to take account of stock when desired.' And in case of breach of contract by defendant while contract was in force, it was mutually agreed the defendant should pay plaintiff as liquidated damages $105, provided ten days’ written warning was previously given by plaintiff and defendant had not in the meantime complied with the contract, and in such case defendant should promptly pay the liquidated damages, surrender- agency and return to plaintiff the patterns on hand, etc. ■
Third. That agency might be closed after two years from date, by one month’s notice in writing by either party, etc., and the stock
The complaint alleged that the plaintiff had fully performed all the conditions of the contract on its part, but that the defendant about May 8, 1894, refused to perform the contract, and ever since had so refused, and had refused to accept patterns from plaintiff agreed to be consigned to her by plaintiff, and that she had refused to pay the $105, liquidated damages, although the ten days’ warning had been given by plaintiff to defendant, and thereupon judgment was demanded for the $105, liquidated damages, with interest and costs.
The court in dismissing the complaint held that the contract was invalid for indefiniteness as to the quantity of patterns to be consigned under the first clause, and that the second clause- was-unilateral and there was no consideration on the part of the plaintiff' therefor.
We cannot assent to the correctness of either of these conclusions. The fair construction of the first clause is that the quantity of patterns within the limit stated of $1,000, at retail prices to be consigned, was to be such as should- be fairly and reasonably sufficient for the needs of the business — such as-the defendant should be able to sell. Some quantity should be consigned in any event, and the quantity necessary within the contract, should be. mutually agreed upon as the business progressed. The plaintiff could not refuse to consign any patterns, nor could the defendant refuse to receive any or require the plaintiff to consign more than should be fairly and reasonably necessary. The parties could neither of them refuse unreasonably to come to an agreement as to what qtiantity was necessary. They were under obligation to act and make 'an effort in good faith to arrive at such a mutual agreement.
We think the contract was not invalid for uncertainty; and the complaint alleged that long before the time fixed for the first delivery of patterns the defendant absolutely refused to carry out the agreement at all or to receive any patterns at all. This was a clear violation of the contract which entitled the plaintiff to maintain the action for damages and to recover the same from the •defendant.
Neither was the second6 clause unilateral and without consideration. The plaintiff granted the defendant the exclusive agency
The contract was expressly provided to be mutual, and the agreement bn the part of one party was a sufficient consideration for the agreement on the part of the other.
We think the complaint was improperly dismissed and that the judgment should be reversed and a new trial ordered, with costs to appellant to abide event.
Parker, J., concurred ; Yan Brunt, P. J., and RumseY and 'Patterson, JJ., concurred in -result.
Judgment reversed, new trial ordered, costs to appellant to abide event.