133 N.Y.S. 815 | N.Y. App. Div. | 1912
On the second trial of this action the court dismissed the complaint of the plaintiff and directed that his exceptions be heard in the first instance by this court, entry of judgment in the meanwhile being suspended. The case is now before us on the exceptions of the plaintiff and the defendants’ motion for judgment. The action is at law to recover damages for a breach of contract. It is our duty to consider the facts proved by the plaintiff in the aspect most favorable to him, as a nonsuit was directed.
It appears that prior to February, 1901, the plaintiff had been a member of a copartnership which carried on the business of selling general merchandise in South Africa. This copartnership was dissolved, and in February, 1901, a written contract was entered into between the plaintiff and the defendants as copartners whereby the plaintiff became the agent or representative of the defendants in the business of selling general merchandise in South Africa. This agreement obliged the plaintiff to turn over to the defendants “ all patents, trade marks, agencies, and compensation of which he is the owner or of which he has control.” It prescribed the duties of the plaintiff and provided for his compensation at §300 per month in addition to proper expenses while in South Africa, “together with a sum equal to twenty-five per cent (25%) of the net annual profits of said department,” i. e., the South African agency of which the plaintiff was to have charge. The contract was to run for three years and it contained a clause as follows: “It is Understood, that at the expiration of this contract this agreement shall be renewed upon such terms and for such length of time as shall be mutually satisfactory to the parties hereto.”
The plaintiff entered into the performance of the duties required by the agreement, and the mutual arrangements
In the complaint the plaintiff pleads also a breach of the agreement so alleged and asks damages therefor. While the various defendants answer separately, their pleadings are the same in form. Each answers the allegations of the plaintiff as to the agreement in form as follows: “VI. He admits that on or about the 29th day of June, 1904, the defendants notified the-plaintiff that they had decided to give up their South African Department as theretofore and then conducted, and agreed to turn over to said plaintiff the office staffs connected with said department both in New York and in South Africa, and all brands and trade-marks connected with said South African business which they owned or controlled, and all agencies which they had secured from the various manufacturers and merchants to represent them in the South African trade, and that plaintiff agreed to waive all of his alleged rights under said contract with the defendants, as alleged in the paragraph of the complaint herein numbered Sixth, but he denies each and every other allegation in said paragraph of the complaint herein numbered Sixth.”
Each defendant likewise denied a breach of the alleged agreement and the allegation of the complaint as to damages. When the plaintiff at the trial came to sustain the allegations of his complaint as to the alleged agreement he gave proofs which may be summarized as follows: On June 29,1904, he met the defendants Amsinck and Pavenstedt; he asked them for their final decision as to the continuance or abandonment of the South African department; Amsinck, in the presence of Pavenstedt, said: “ I have decided to close the South African Department; I don’t like it; I don’t want it. It has been a very large business, and I don’t want my name on paper all over the world. I am getting an old man, and I want to leave my affairs in order. I will transfer the entire business to you, with the exception of three or four large accounts, such as Hunt, Leuchars & Hepburn; Baker, Baker & Co. and Vanderbyl & Co.; we will transfer to you all of the books, the staffs at New York and in South Africa, all brands, trade-marks and agencies
“G. Amsinck & Co.,
“ 6 to 9 Hanover Street,
“New York.
‘ Tel. Address, Amsinck.
New York, 29 th June, 1904.
“To whom it may concern :
“We hereby beg to state that Mr. W. T. Stevens has been in our employ for over three years, being part of the time at the head of our South African department, and mostly as our agent and representative in South Africa, residing at Capetown.
“We have much pleasure in stating that he proved to be an energetic and able man in this position. We now sever our connection with him as we give up our S. A. department for purely business reasons, and most heartily wish him good luck and success in his future career.
“ G. AMSINCK & CO.”
“New York, Aug. 2, ’04.
“Messrs. Gr. Amsinok & Co.,
“New York:
“Dear Sirs.— In view of your decision to close the South African Department and to withdraw all active representation from that field, in consequence of which you asked me to discontinue my services from Sept. 1st next, I beg .to state that I am offered a position with the American Trading Co. but do not wish to accept until I have your authority in writing and your confirmation of the above also of the following:
“That you will allow me to take over those members of the staff at New York and in South Africa that I require. That you will transfer to the American Trading Company so far as lies in your power, all Agencies from Mfrs. all trade-marks, brands, &c., now belonging to you and connected with South Africa.
“I should also be satisfied to have the account between us closed as it now stands each giving the other a clean receipt.
‘ ‘ Yours faithfully,
“W. TYRIE STEVENS.”
“G-. Amsinok & Co.,
“P. 0. Box 242,
“New York.
“Tel. Address, Amsinck.
New York, 2d Aug. ’04.
“ W. Tyrie Stevens, Esq.
“Prst.:
“Dear Sir.—In answer to your favor of even date, we beg to say that our firm has not yet decided, whether we shall continue to do any business in South Africa or not.
“We shall transfer to the American Trading Co., as far as lies in our power, all agencies from manufacturers, trademarks, brands, &c., connected with our S. Afr. business to-day.
*227 “We hereby state that we consider the accounts between us closed and balanced, you waiving all claim on any interests in! profits of the South African department for the present year, and we making no further claim upon you for any balance against you on our books. Please confirm this in writing to
“Tour truly,
“G. AMSINCK & Co.”
“New York, Aug. 3, ’04.
“Messrs. G. Amsinck & Co.,
“New York:
“Dear Sirs.— I am in receipt of your favor of 2nd inst. and I hereby confirm your remarks, except in respect to the possibility of your doing some South African business in the future. Regarding this I will rely on the assurance of Mr. Amsinck that you do not intend to seek business in that field, reserving to yourselves the right to execute orders if offered. You may therefore regard my engagement as cancelled from Aug. 31st prox.
“ Thanking you for all past courtesies of which there are many, I remain,
“Yours faithfully,
“W. TYRIE STEVENS.”
On August 2, 1904, the plaintiff entered into a contract with a corporation known as the American Trading Company, whereby he became its representative in South Africa in the business of selling general merchandise at an annual salary together with an interest in the net profits. The. defendants then sent to many of their customers written notices as follows:
“ G. Amsinck & Co.,
“ P. 0. Box 242,
“New York.
“Tel. Address, Amsinck.
“New York, Aug. 5/04.
“ The Reeves Pulley Co.,
“ Columbus, O.:
“ Dear Sirs.— The present serves to advise that we are about to give up our South African Department, and Mr. W. Tyrie Stevens, who has represented us for over three (3) years in that*228 territory, has made arrangements to carry on the business with the American Trading Co., of this City, and will represent them in the above mentioned territory.
“We would thank you to transfer your contract and agency allowed us, over to the American Trading Co., who will, doubtless, be able to handle the business to your entire satisfaction.
“Yours very truly,
“G. AMSINCK & CO.”
The plaintiff claims that the facts above stated establish a contract between him and the defendants whereby they bound themselves to refrain from active solicitation of business in South Africa. If such be the case, then under the other proofs in this case there was a clear breach subsequently of such agreement, inasmuch as the defendants resumed their South African business as theretofore conducted and actively solicited trade in competition with the plaintiff and the American Trading Company, and as to this there is no controversy. It is the contention of the defendants that no binding contract was made between the parties on June 29, 1904, to the extent that the defendants should refrain thereafter from active solicitation of trade in South Africa. They urge that whatever was said at that time on that question was not contractual in nature, but was a mere statement of intention subject to change and from which no binding obligation resulted.
While it is true that a mere statement of intention may not be a sufficient basis for such an acceptance as will result immediately in a binding agreement, yet whether the terms of the statement and the attending circumstances are such as to give the other party the right to act upon it as an intended offer is a question to be submitted to the jury. (Thurston v. Thornton, 1 Cush. 89; Henderson Bridge Co. v. McGrath, 134 U. S. 260.) And if the statement be in such form that.it may be susceptible of more than one meaning, it is to be interpreted in the sense in which the promisor had reason to expect that it was understood by the promisee, and this is likewise a question for the jury. (White v. Hoyt, 73 N. Y. 505, 511.)
Whether, therefore, a binding contract was made between these parties that the defendants should withdraw from active
Whether it is certain the plaintiff can succeed in proving come substantial damages is a most troublesome question. Such attempt may have its difficulties and the actual amount of such damages may not be free from some doubt. Yet, where there has been a breach of contract, and it appears certain that some substantial damages have resulted, a defendant cannot escape liability for such damages simply because they cannot be ascertained exactly, and that, in order to approximate them, some speculative elements must enter into consideration; for, under such circumstances, a jury may indulge in “reasonable conjectures and probable estimates ” arising from the other proofs. (Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205.) These other proofs, however, must be of such nature as to support such “reasonable conjectures and probable estimates,” and the damages sought must be such as were reasonably within the contemplation of the parties, and directly traceable to the breach, and not the result of intervening causes. They may include losses made and probable profits prevented. The measure of the damages is the value of the contract at the time of its breach. (Wakeman v. Wheeler & Wilson Mfg. Co , supra.) This question of value is to be determined upon the relevant facts antecedent and subsequent to the breach,
However, to be recoverable at all, the damages “must be certain, not only in their nature, but as respects the cause from which they proceed.” (Witherbee v. Meyer, 155 N. Y. 446.)
The rule as to certainty of damages and of their cause does not require a mathematical certainty but only such reasonable certainly as serves as a basis for the ordinary conduct of human affairs.
It appeared from the plaintiff’s proof that, at the time the alleged agreement was made between the parties to this action, there were a number of other firms competing with the defendants in the business conducted by their “South African Department,” five important firms and at least five others of lesser importance. It likewise appeared that, during the time from 1901 to and including 1904, the defendants had done a large volume of business in an annual amount of over $1,000,000 in the “ South African Department,” and that said business was in some years profitable to an extent which it is not now necessary to discuss.
It appeared likewise that after the alleged breach the defendants did a South African business for several years, varying in volume from $200,000 to $300,000 a year. Proof was given of the general nature of the South African business, of the plaintiff’s long experience in it and of his general ability to handle it. When the plaintiff was asked on his direct examination to “ State the general nature and character of the business and how it was conducted for the defendants,” the question was excluded on the defendants’ objection. Neither was he allowed to testify that after the alleged breach he, for the American Trading Company, dealt in the same class of commodities as had been and were being dealt in by the defendants’ “ South African Department,” nor to what extent he was able to procure business from the former customers of the “ South African Department,” nor to what extent he was able to secure
We think that the exceptions of the plaintiff should be sustained and a new trial granted, costs to abide the event.
Thomas, Woodward and Rich, JJ., concurred; Jerks, P. J., taking no part.
Exceptions of plaintiff sustained and new trial granted, costs to abide the event.