181 A.D. 790 | N.Y. App. Div. | 1918
The action is to procure the cancellation of a contract on the ground of fraudulent representations made by the defendant in procuring the contract to be made. The defendant answered denying the material allegations of the complaint, and alleged a counterclaim for damages for breach of
There can be no question that, so far as above quoted, the contract is mutually binding upon the parties and is a valid contract. The plaintiff claims, however, that the following clause destroys this mutuality: “ 7. It is further understood and agreed that in case the party of the first part [the defendant] shall not be able to furnish the said Stop-a-Leaks [the patented article] as ordered by the party of the second part [the plaintiff], the party of the first part shall not be held liable in damages by the party of the second part.” This provision of the contract does not give the defendant the right arbitrarily or of his own volition to terminate it. It is merely a protection against unforeseen difficulties that might arise which would without his fault or neglect, make it impossible for him to perform. It is a well-recognized rule that contracts should provide against difficulties and hardships of performance. For if they are not provided against, the party will not be excused, no matter how great may be the difficulty to be overcomé or the hardship incurred in performance. Instead of providing specifically against the happening of contingencies that might be foreseen which would affect defendant’s ability to perform, such as strikes of his workmen, destruction of his plant by fire, and other
There is, however, a defect in the counterclaim which has not been referred to in the briefs of counsel. There are no allegations in the counterclaim of due performance of the terms and conditions on defendant’s part to be performed. The contract contains agreements on defendant’s part that would have to be performed before plaintiff could be put in default. The counterclaim must be complete in itself, and we cannot supply omissions of necessary allegations by reference to other parts of the answer or the complaint.
The order will, therefore, be reversed, with ten dollars costs and disbursements, and the demurrer sustained, with ten dollars costs, with leave to the defendant to serve an amended answer upon payment of the said costs within ten days from service of a copy of the. order herein, with notice of entry thereof.
Clarke, P. J., Laughlin, Dowling and Shearn, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with ten dollars costs, with leave to defendant to amend on payment of costs.