67 N.J.L. 665 | N.J. | 1902
The counsel of the plaintiff in error, insisting, correctly, that his demurrer craving oyer of the agreement upon which the declaration is founded, and its introduction in full into the record, is the same in effect as if the whole instrument had been stated in the declaration, and draws its entire terms in review, urges that when all its provisions are examined it is “free from ambiguity,” and that the admitted failure of the parties of the second part (represented by him) to order and pay for the designated merchandise does not constitute an actionable breach of the agreement. That this agreement is free from ambiguity will be conceded, but it seems to me to be equally clear its proper interpretation will demonstrate that the failure of the plaintiffs in error to order the goods contracted for constituted an actionable breach of the agreement.
For the sake of clearness in dealing with this assigned, tripartite instrument, it should be borne in mind that, by force of its several transfers, set forth in the declaration, the plaintiff below (Vickers) represents the first parties to the bargain, called the “Electrozone Company,” who were the vendors, and that, by virtue of the “assumption” or “acceptance,” the defendants below (“The Electrozone Commercial Company”) take, the place of the second parties to the compact, the vendees, called therein “Hears” and “Hibbard.” The substance of that agreement can be summarized as follows: The first parties, who were the sole owners of certain patented liquid compounds or disinfectants called “Electrozone” and “Heditrina,” on their part, sold to the second parties, at prices therein fixed, certain quantities of these patented mixtures, and, by the same instrument, -granted to them the exclusive right to sell and distribute them within the territory of the United States. This right was granted to the second parties subject to the restriction that the patented compounds should not be sold by them at prices less than those at which it was then sold by the first parties, except by their consent. The second parties, on the other hand, agreed, in consideration of
The legal sufficiency of these averments, so standing, the plaintiffs in error cannot, and do not, dispute, but they insist in this court that these averments are not supported by the terms of the instrument declared upon when considered in all its parts and as an entirety; that “it contains within itself express provisions for its own discharge — the non-fulfillment of a specified term of the contract,” and that the remedy provided for in case of default in the purchase of the goods by the vendees was “exclusive of any remedy at law against them; that the vendors ‘got rid’ of the contract with the vendees, and would have the untrammelled use of their products
The liabilities of the latter are quite distinguished from their rights. Those rights are regarded, under this fifth clause, as resting within their own volition, and as belonging to themselves, but their obligations under the contract which belonged to others are, properly, not made the subjects of their own voluntary actions. That the fifth clause was intended, in a measure, as self-protective to the vendors against non-performance by the vendees, and as additional, and not substitutional, to their remedy at law, receives support from the language of the seventh clause, which, vice versa to the fifth, affords some self-protection to the vendees, in case of their compliance with the conditions of this agreement, should the vendors, on their part, fail to comply. In the last event, the vendees are given the right to manufacture, for their use,.
The effect of this contention of the plaintiffs in error, regarded from a practical standpoint, results in a reductio ad absurdum. Is it, in the least degree, probable that these vendors, who were owners of a valuable monopoly and presumably men of affairs, after framing carefully an important sealed instrument, the principal inducement to which must have been the acquisition of substantial profits for themselves out of a business to be carried on in a large territory for an ensuing year of time, and, after stripping themselves of that privilege, would, designedly, by the same instrument, put it in the power of their vendees, during all that period, at will, to defeat the whole object of the compact and escape all liability therefor ? If the plaintiffs in error are correct in their construction of the contract, the vendors have adopted a very ingenious method of strangling their patented novelty in its infancy. They have not only enabled others — probably their competitors in business — to consign the enterprise to business oblivion for at least a year, but they have also most effectually estopped themselves, during the same period, from either earning any profits by their own exertions, or from reaping any benefits through the labors of their vendees. Such business folly, not to say stupidity, will not readily be inferred' to have been within the intention of the vendors. The insistment that the fifth clause furnished the exclusive remedy, in case of default in the purchase, is unreasonable, and is certainly not sus.tained by the express language of that clause, nor is there
The “inconsistency” in the case in hand (if, indeed, there be any) cannot be claimed to be so great as to avoid the instrument for uncertainty, for the reasons previously pointed out. The proper effect of the fifth clause was to afford the vendors additional protection against default by the vendees, not at all incompatible with the retention of their right to seek damages at law for such default.
Among the cases referred to in the text, in support of this principle, is Hardman v. Hardman, Cro. Eliz. 886. This case was debt upon a bill obligatory, reading “Memorandum that I, John Hardman, * * * do acknowledge myself to owe and do promise to pay to my mother, Agnes Hardman, the sum of £10, * * * for the payment whereof I bind myself, my heirs, executors and administrators, to John Hard-man, the elder, my father.” Hpon demurrer by defendant, it was “adjudged to the plaintiff, and that it was a good bill to Agnes, by the words in the first part of the bill, and -the words which oblige him to John Hardman, Sr., in the last part of the bill, are void.” In a note it is said: “The last clause was rejected because repugnant to the complete obligation already contracted.”
Story Cont., § 660, states the rule as to repugnant clauses in contracts in another form, not dependent upon the mere order of precedence in which they are framed in the instrument, thus: “But whenever one portion of a contract is wholly repugnant to the rest of it, and is irreconcilable with the manifest intention of the parties, as apparent upon a consideration of the whole instrument, it will be stricken out.” Again, in section 661, in speaking of the effect of contra
There can be no doubt but that the principal inducement to the contract we are considering was the purchase and payment for the patented mixtures, and therefore the case falls clearly within the meaning of the above statement of the law. Clark Cont. (ed. 1894) 589, ch. 10, in giving the subsidiary rules of construction which govern the interpretation of contracts, mentions two which are of some pertinence. He says: “A contract will, if possible, be construed so as to render it reasonable, rather than unreasonable,” and “where it is susceptible of two meanings, will be given the meaning' which will render it valid.”
The construction given by the Supreme Court, in the opinion filed below, to the proviso of the fifth clause, to the effect' that it constituted a grant of an option, in favor of the vendors only, to treat the agreement as voidable, has not seemed to need comment, for the reason that, considering the whole-contract, there is discoverable no ground for the insistment, now urged before this court, that it exhibits an intent of the parties to exempt the vendees from liability at law for breach of their covenants to purchase. If, however, the absence of such an intent is not entirely clear, the eases, relied upon in the Supreme Court, of Doe v. Bancks, 4 Barn. & Ald. 401, and Rede v. Farr, 6 Mau. & Sel. 121, 124, and others there referred to (see, also, Smith v. Miller, 20 Vroom 521, and Creveling v. West End Iron Co., 22 Id. 34), furnish pointed and convincing authority for the principle, then applicable, and sustained by the opinion below, that the legal operation of such a proviso rendered the instrument voidable at the election only of the vendors, and the vendees should not be permitted to take advantage of their own wrong by' failing or refusing to comply.
The question of the plaintiff’s right to recover damages for the failure of the defendants to comply with the agree
Ho other grounds of error deserving discussion are presented to this court, nor disclosed by the record, and the judgment of the Supreme Court should be affirmed.'
For affirmance — The Chancellor, Chief Justice, Van Syckel, Garrison, Collins, Fort, Garretson, Hendrickson, Pitney, Bogert, Krueger, Adams, Vredenburgh, Voorhees, Vroom. 15.
For reversal — None.