Opinion
November 20, 1907.
Lewis E. Carr and P.C. Evans, for the appellant.
Countryman Du Bois [ Andrew J. Nellis of counsel], for the respondent.
The paper of January 6, 1902, standing by itself lacks mutuality in that the plaintiff did not bind himself to make any sales of cement and hence constitutes no valid contract binding on either party. ( Chicago Great Eastern R. Co. v. Dane, 43 N.Y. 240; Commercial Wood Cement Co. v. Northampton Portland Cement Co., 115 App. Div. 388; Rafolovitz v. American Tobacco Co., 73 Hun, 87.) Respondent, however, insists that such writing is but part of the agreement and that it must be construed in connection with the correspondence and conversations between the parties. Acceding to the respondent's contention in this respect and construing the arrangement of the parties in the light of all the facts as found by the learned referee, we are of the opinion that such arrangement is too indefinite and unreasonable to be enforced and that it is, therefore, for such reason void. Although defendant was to furnish the cement at a fixed and definite price during the entire year regardless of the fluctuations in the market price, no limit was placed on the amount which plaintiff should order or sell. But he agreed "to sell as much as possible and to `push' it in every way" and to give defendant's brand the preference. It is evident that if the price of cement materially rose in the market, plaintiff by giving defendant's brand the preference and offering it for sale at less than the market price could sell without limitation. On the other hand, if the price fell in the market it became plaintiff's corresponding duty to make the same effort in behalf of defendant and to undersell all other dealers, thus giving the defendant the same advantage which he could claim for himself if the market price advanced. In either case there was no limit to the amount of sales which the contract required. In the one case the result might prove financially disastrous to the defendant and in the other case financially disastrous to the plaintiff.
The case is materially unlike Ellis v. Miller ( 164 N.Y. 434) where the agreement as to quantity was limited, the court saying: "We think the obligation of the plaintiff is confined within the limit stated," viz., to sales of goods amounting to $1,020. So in Wells v. Alexandre ( 130 N.Y. 642) the contract was to furnish coal for the steamers of a certain line. There, although the contract as to quantity was in a certain sense indefinite, it was nevertheless limited by the requirements of such steamers and it was held that the maxim certum est quod certum reddi potest applied.
There is here no opportunity for the application of such maxim. The opportunities of the parties for the exploitation of their own interests at the expense of each other are as boundless as the demands which might be made for cement stimulated and quickened by the desire to procure the same at an abnormally low price. To place a logical construction on this arrangement we must hold that one of these parties had the power to involve the other in financial ruin and which of the two would be ruined would depend on the fluctuations of the market price. Such a contract we hold to be void.
All concurred (KELLOGG, J., in result in memorandum), except CHESTER and SEWELL. JJ., dissenting.
I concur in reversal. I think there was a valid verbal contract to furnish cement to the plaintiff f.o.b. Alpha at five cents less than to any other Albany customer, and that the writing related only to the proposed contract to be made in January for supplying plaintiff's regular customers during that year.
Judgment reversed on law and facts, referee discharged, and new trial granted, with costs to appellant to abide event.