(183 N.Y.S.)

event that defendant fails to exercise the option, but fails to sell the stock, provided that the parties do agree and after they have agreed upon the terms of such sale.

Even if we assume, which I do not think we can, that it was agreed that at the end or termination of this agreement the party of the first part shall offer, in place of may offer (as the contract recites), shares of the defendant to the plaintiffs, the situation would not be bettered in plaintiffs' favor. The agreement, so called, would still remain an agreement dependent upon a further prospective and hoped-for agreement, and there would not be a binding obligation upon the parties. Mayer v. McCreery, 119 N. Y. 434, 23 N. E. 1045; United Press v. N. Y. Press Co., 164 N. Y. 406, 58 N. E. 527, 53 L. R. A. 288; Petze v. Morse Dry Dock Co., 125 App. Div. 267, 109 N. Y. Supp. 328.

There is no stipulation fixing, nor any means provided for ascertaining, the price of plaintiffs' factory. There is an equal absence of provision for determining the value of defendant's shares. I cannot understand what the parties meant by the stipulation that "proper provision shall be made for the preservation of the plaintiffs' shares of stock" (to be issued by the defendant), nor is any standard provided whereby it can be determined what the parties meant by "a reasonable drawing account" for the plaintiffs. Even if we interpret the phrase "proper provision for the preservation" of plaintiffs' shares of stock. as indicating a plan to provide for the protection of a possible minority interest in the defendant corporation, a half dozen methods of doing that suggest themselves forthwith, and there are, of course, innumerable others.

Plaintiffs' counsel urges in his brief on this appeal that "every contract implies good faith and fair dealing between the parties to it," citing Wigand v. Bachmann-Bechtel Brewing Co., 222 N. Y. 273, 277, 118 N. E. 618. This principle undoubtedly is sound as applied either to the interpretation of a contract or its execution; but where the parties have made no contract-in other words, where their minds have not met-it is difficult to understand to what act on the part of either party the quality of good faith or fair dealing is to attach. Defendant did not even agree to endeavor to reach an agreement with plaintiffs as to the terms of the contemplated combination of the two businesses. That element, at least, was present in Hopedale Electric Co. v. Electric Storage Battery Co., 39 App. Div. 451, 57 N. Y. Supp. 422, and 96 App. Div. 344, 89 N. Y. Supp. 325, affirmed 184 N. Y. 356, 77 N. E. 394, and 132 App. Div. 348, 116 N. Y. Supp. 859, affirmed 198 N. Y. 588, 92 N. E. 1086. In that case the plaintiff had sold its plant to defendant for a certain sum, and the contract of sale provided for additional payments to be made in the event that a subsequent test of the respective merits of the two plants should show certain percentages of superiority of plaintiff's over the defendant's. The contract further provided that "the conditions of the test * shall be agreed upon by both parties as soon as may be after the execution of this agreement." A demurrer to the first complaint served was sustained, on the ground that the contract was too indefinite to support a cause of action, and the court pointed out that, in the absence of appropriate

* *

!

allegations as to the degree of superiority of one system over the other, no cause of action was set forth; that, indeed, the only breach indicated was one of defendant's "agreements to agree" upon the conditions of a test, for which the damages would manifestly be merely nominal. 96 App. Div. 352, 353, 89 Ň. Y. Supp. 325. A recovery was, however, ultimately sustained in the final stage of the case (reported in 132 App. Div. 348, 116 N. Y. Supp. 859), after plaintiff had given proof that the conditions of the test had in fact been agreed upon, but that defendant had arbitrarily refused to proceed with such test. It was then held that the jury had a right to weigh the evidence as to the relative merits of plaintiff's system over defendant's.

In the instant case, as I have said, we have no express agreement on the part of defendant to endeavor to reach any agreement with the plaintiffs as to the terms of the combination of their respective businesses. But, even if we assume that that should be implied in the agreement as made, there is a complete absence of any standard, measure, or basis for determining, ascertaining, or, I might possibly add, guessing at the prices, terms of payment, methods of protection, or reasonableness of the amount of compensation contemplated.

In my opinion, therefore, the clause of the contract quoted, and which is made the basis of the third cause of action, represents no meeting of the minds of the parties, and is so totally indefinite as to afford no basis for any recovery on any theory. The complaint, therefore, should have been dismissed as to this cause of action.

The judgment, consequently, must be modified, by reducing the same to $368 and costs in the court below, that being the sum admittedly due from defendant to plaintiffs on the first cause of action, and, as so modified, affirmed, with costs to the appellant of this appeal, to be set off against the judgment. All concur.

B. F. GOODRICH RUBBER CO. v. PARSHELSKY BROS., Inc. (Supreme Court, Appellate Term, First Department. June 24, 1920.) Sales 33-Where goods were delivered by mistake after cancellation of contract between seller and third person, defendant cannot retain them without payment.

Where plaintiff, after cancellation of a contract between it and another providing for delivery of tires to defendant, by mistake delivered such tires, plaintiff is entitled to the return of the tires, or to recover from defendant their value, notwithstanding, had the tires been delivered pursuant to contract, defendant would not have been liable.

Appeal from Municipal Court, Borough of Manhattan, Third District.

Action by the B. F. Goodrich Rubber Company against Parshelsky Bros., Incorporated. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.

Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(183 N.Y.S.)

Edward B. Levy, of New York City (Monroe J. Cahn, of New York City, of counsel), for appellant.

H. S. & C. G. Bachrach, of Brooklyn (Herman S. Bachrach, of Brooklyn, of counsel), for respondent.

WAGNER, J. On or about July 21, 1919, the White Company (not a party to this litigation) ordered from the plaintiff six tires to be delivered to the defendant. On August 5, 1919, this order was canceled by the plaintiff with the consent of the White Company. On the same day (August 5th) two tires were delivered by plaintiff to defendant, and on August 14th four more were delivered. It appears that the plaintiff delivered these tires, subsequent to cancellation of the order, by mistake. When the mistake was discovered, plaintiff demanded payment for the tires from defendant, or their return. The defendant refused to do either, and this action was brought in conversion.

The defendant resisted the action on the theory that, plaintiff having accepted and retained the order given by the White Company, the defendant is not liable for the price or value of the goods to plaintiff. Apparently that theory was accepted by the court below, for judgment was rendered in favor of defendant. While this theory is correct, the undisputed facts in this case do not warrant its application. There was no contractual relationship between plaintiff and defendant. Whatever obligation there was upon plaintiff to deliver to the defendant was because of a contract between the White Company (a third party) and plaintiff. That contract was canceled by mutual consent of the contracting parties, and of course discharged plaintiff's obligation. The plaintiff having delivered the tires to the defendant by mistake, it is entitled to their return or their value.

Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event. All concur.

H. M. GOLDSTEIN CO., Inc., v. BURTON et al.

(Supreme Court, Appellate Term, First Department. June 24, 1920.) Principal and agent 119 (2)-Plaintiff must show that defendant's representative had authority to make sale.

In action by purchaser under a contract of sale with a representative of defendant, it must appear that defendant's representative had authority to make such a sale on his own responsibility.

Appeal from Municipal Court, Borough of Manhattan, Fourth Dis

trict.

Action by the H. M. Goldstein Company, Incorporated, against James W. Burton and others. From a judgment for defendants, after trial by the court without a jury, plaintiff appeals. Judgment modified, and, as modified, affirmed.

Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Solon B. Lilienstern, of New York City, for appellant. Thayer & Carey, of New York City (Wm. J. Carey, of New York City, of counsel), for respondents.

PER CURIAM. Judgment has been entered in this case, dismissing plaintiff's complaint on the merits. We cannot believe, in face of the documentary evidence and defendants' fairly incredible explanation thereof, that defendants' representative intended to do other than sell the goods which are the subject-matter of this controversy. There is, however, no evidence that the defendants' representative had authority to make such a sale on his own responsibility, and there is the direct evidence of the defendants to the effect that he had no such authority. In the absence of any element of estoppel, it seems clear that plaintiff failed to prove that the transaction was authorized by defendants, and the complaint should therefore be dismissed for failure of proof and without prejudice.

Judgment modified accordingly, and, as so modified, affirmed, with $15 costs of this appeal to respondent.

TRUSSELL v. TRUSSELL.

(Supreme Court, Appellate Term, First Department. June 24, 1920.) Husband and wife 281-Demand not condition to recovery on husband's contract to furnish transportation to wife.

Where a husband and wife had entered into a contract to settle their property rights in case the wife's suit for divorce was successful, which required the husband to pay a specified debt and to furnish the wife transportation to California, either in cash or in tickets, and in the latter event gave the wife right to choose the route, the wife can recover the value of the transportation, which the husband failed to furnish, without proving a demand for such transportation.

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Elaine D. Trussell against Arthur J. Trussell. From a judgment dismissing the complaint, and from an order granting defendant's motion to have the judgment amended to dismiss the complaint on the merits, plaintiff appeals. Reversed, and new trial granted. Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ.

McCole & Reid, of New York City (Thomas A. McCole, of New York City, of counsel), for appellant.

Cullom & Rinke, of New York City (Neil P. Cullom, of New York City, of counsel), for respondent.

DELEHANTY, J. The action is to recover $181.50 claimed by plaintiff to be due her pursuant to an agreement entered into between the parties hereto on April 28, 1916. The pertinent paragraph is as

follows:

"Third. The husband hereby further agrees to pay a certain dressmaker's bill of the wife, not exceeding $91.75, and to furnish the wife with transpor

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(183 N.Y.S.)

tation for one trip each way each year to and from California for the three years next succeeding the execution of this agreement, said transportation to be furnished in the form of cash or railroad tickets, and in the latter case the wife shall have the privilege of choosing the route."

It appears that, in accordance with demand duly made therefor, defendant furnished transportation for the years 1916 and 1917, but that no demand was made or transportation furnished for 1918. It is conceded that the cost of transportation to and from California for the year 1918 was the sum sued for, namely, $181.50. The complaint was dismissed on the merits at the close of plaintiff's case, and, in the absence of opinion, presumably on the specific ground urged by defendant therefor, namely, that plaintiff had failed to prove any demand for transportation in 1918.

I think the learned trial judge took an erroneous view of the situation presented by the evidence. Of course, the agreement is to be construed in the light of the intent of the parties thereto. The recitals of the agreement inform us that at the time of the execution thereof there was pending an action instituted by plaintiff for an absolute divorce from the defendant, and that from the viewpoint of both parties it is desirable that the question of alimony and the wife's interest in the property rights of the husband be harmoniously adjusted in the event of a determination of the said suit in favor of the wife. It is then agreed that defendant shall pay to plaintiff a specific sum as and for alimony, to her attorneys a specified counsel fee, and then follows the paragraph under discussion. The provisions of that paragraph are to my way of thinking just as absolute and binding upon defendant to comply with as those which precede it in the agreement and to which I have referred.

We cannot substitute a new agreement for the parties. Nor can we inject therein something not within the contemplation of the parties in the making thereof. By this paragraph in dispute defendant undertook in the first place to liquidate his wife's dressmaker's bill, and no demand was necessary as a condition precedent to the performance thereof. Then he was to furnish his wife with transportation to and from California each of three years next succeeding the execution of the agreement, and conceded to be the years 1916 to 1918, both inclusive. That transportation could be furnished either in cash or railroad tickets, and in the event of the latter then only did the wife have any option in the matter, and that to the extent of selecting the route of travel. In other words, it is clearly apparent that defendant had the choice of tendering his wife, in compliance with the contract, either cash or tickets. If the former, plaintiff was obligated to accept the same. If the latter, acceptance was dependent only on the route being satisfactory to her.

This is not a case where demand is a condition precedent to the institution of action, and it therefore follows that the judgment appealed from should be reversed, and a new trial granted, with $30 costs to appellant to abide the event. All concur.

183 N.Y.S.-3