207 A.D. 736 | N.Y. App. Div. | 1924
Lead Opinion
Plaintiff corporation is in the business of buying newspapers and periodicals from publishers thereof and selling the same at wholesale to newsdealers in the city of Albany and vicinity, who in turn sell at retail to the general public. The defendant is a publisher of
It appeared that on July 24, 1922, the plaintiff ordered 500 dailies and 1,300 Sundays, the delivery thereof to start on July 25, 1922. The plaintiff claims that thereupon it took orders from retailers for the delivery of a large number of papers, and that it engaged the services of a special employee to assist in carrying on the work. Plaintiff thereupon gave to defendant a check which reads as follows:
„ . AT ^ T 7 0. 1noo “ Albany N. Y. July 24 1922.
“ Central Bank op Albany N. Y.
“ Pay to the order of The News $100.No /100 One Hundred Dollars Dollars
“ THE VAN SLYKE NEWS AGENCY INC.
“ F. N. Van Slyke,
“ President and Treasurer ”
On the face of this check was written the following:
“ This is for a deposit to cover account beginning July 24th, 1922.
“ THE VAN SLYKE NEWS AGENCY, INC.”
“ Unless both parties to a contract are bound so that either can sue the other for a breach, neither is bound.” (Schlegel Mfg. Co. v. Cooper’s Glue Factory, 231 N. Y. 459 and cases cited.)
We do not regard the case of Ehrenworth v. Stuhmer & Co. (229 N. Y. 210) as conclusive in this case, because the duration of the contract in this case is not definite.
The appellant claims that the trial court erred in denying defendant’s motion for judgment on the counterclaim. Plaintiff’s reply denies that “ the plaintiff is indebted to the defendant in the sum of $82.61.” Such denial is not good, but the pleading might easily have been amended on the trial. The plaintiff in Ids testimony admits an indebtedness of more than this amount.
The judgment should be modified by reducing the same to seventeen dollars and thirty-nine cents, with interest thereon from July 24, 1922, and as so modified judgment and order affirmed, with costs to the appellant in the trial court and without costs in this court.
All concur, except Hinman, J., dissenting, with an opinion.
Dissenting Opinion
(dissenting):
The contract was to supply plaintiff with the number of papers ordered so long as the parties co-operated and the plaintiff increased the circulation. The plaintiff was to have the agency for the sale of the papers in the city of Albany. This was the defendant’s agreement. Was there consideration and mutualitjr? Anything of value, any promise to do what a party is not bound to do, constitutes a consideration. Mutuality in a contract signifies the existence of obligations on both sides. The plaintiff advanced $100 as a deposit to cover the new account. This was an advance payment upon the general account. It was a detriment to the plaintiff and a benefit to the defendant. It constituted consideration and supplied the element of mutuality. Of course the duration of the contract was indefinite but that does not make it
Upon the question of agency we have the fact that the plaintiff had been in similar business before for the defendant and the arrangements had been made through the same agent. The defendant took and applied to its own use the $100 check, which upon its face recited that it was a deposit upon the new account. When a principal ratifies without full knowledge of the facts under circumstances which are sufficient to put a reasonable man upon inquiry, such lack of full knowledge does not protect the principal if he deliberately chooses to act without such knowledge. (31 Cyc. 1257.)
The plaintiff was entitled to recover whatever loss it had sustained up to the time of the action and future gains which were prevented by the breach of the contract. (Nash v. Thousand Island Steamboat Co., 123 App. Div. 148; Sayer v. Wilstrop, 200 id. 364, 375.)
I vote for an affirmance of the judgment.
Judgment modified by reducing the same to seventeen dollars and thirty-nine cents, with interest thereon from July 24, 1922, and as so modified judgment and order affirmed, with costs to the appellant in the trial court and without costs in this court,