Opinion
December 3, 1909.
Charles Blandy [ Frederick A. Card with him on the brief], for the appellant.
Benjamin Tuska [ Abraham Tulin with him on the brief], for the respondent.
The action is brought to recover damages for a breach of a contract. The business of the plaintiff, as described by himself, was "getting up novelties and any new styles of goods that are salable and show a good profit," and dealing therein on what he describes as "joint account," which he defines to be the furnishing of capital by a party with whom he contracts and a division of the profits. For the purpose of engaging in such a venture he and the defendant entered into an agreement in writing on the 11th day of January, 1907, as follows:
"This agreement witnesseth that in consideration of One dollar ($1.00), each to the other in hand paid, the receipt of which is hereby acknowledged, and other valuable considerations, we, Alfred Wolf and Geo. Streat, hereby agree to get up a new line of cloths, made of cotton and in close imitation of certain all wool foreign suitings, or cloths, on joint account, sharing the profits equally. The said Alfred Wolf agrees to pay for making sample pieces of the goods and other expenses incidental thereto, providing the outlay on same is not to exceed in all the sum of Two hundred and Fifty ($250.00) dollars. Samples and sample pieces are to be the property of the said Alfred Wolf, and are to be transferred to the joint account at cost as soon as we decide that they are satisfactory enough for us to proceed with the project. We further bind ourselves not to offer these goods to any manufacturers to make, or cause to be made, without the consent in writing of both parties hereto. The method of placing the goods on the market to be determined when the sample pieces are produced satisfactory to both parties hereto."
After making the agreement they took samples of the foreign goods, which they desired imitated, to certain manufacturers, and the plaintiff described the kind of cotton goods they desired made up in imitation of the goods of foreign manufacture. J.P. Stevens Co. undertook to make the samples for them, and the third effort resulted in a sample which received the approval of the parties. They then placed an order with Stevens Co. for three pieces of the goods, of different colors, containing about five yards each, to be completed and prepared for the market. These were manufactured and delivered to the parties on the 5th day of June, 1907. Stevens Co. then agreed to manufacture such quantities of the goods for the market as the parties desired, at a cost of "eighteen and one-half cents per yard net ten days from the 1st of October, less 2%," and stated that they could deliver 200 pieces each week, and commence delivering about the first of August. No agreement was made with Stevens Co. at this time with respect to the manufacture of the goods. The parties then undertook to find jobbers who would handle the goods. The same day they interviewed Mr. Morrissey, representing Tefft, Weller Co., one of the oldest and largest dry goods jobbers in the city of New York, and he finally said to them: "I will buy a box of these goods at 31½, 6% off, ten days from the 1st of October," and they accepted this offer and left samples with him, and he in their presence gave them to one of his salesmen named Rohr, with instructions to go out and sell the goods, and requested them to send him as soon as they could thirty to forty samples, so that he could send them out on the road. Later in the day, in the presence of the parties, Rohr placed an order with a customer for eleven pieces of the goods, five of one color and three of each of the other colors. A box contains thirty-six pieces, or 1,400 yards. On the same day the defendant said to the plaintiff, after they had thus found a jobber who would deal in their goods and had seen the order placed for a sale of part of the goods, that he was delighted with the sale, and thought that they could make "big money on these goods, and we will go down to Stevens, and order the four hundred pieces," whereupon they went to Stevens Co., but did not find Mr. Stevens in. The defendant was about to leave for Europe, and the next morning he evidently changed his mind about this venture, for he refused to proceed further under his arrangement with the plaintiff. The plaintiff then asked for the samples which the defendant had, and received them the next day. The defendant endeavored to induce another merchant to join with the plaintiff and finance the enterprise, but his efforts were unsuccessful. The plaintiff subsequently took the samples and endeavored to sell the goods, but he was unable to do so. The plaintiff testified that at the time the defendant suggested that they go to Stevens and order 400 pieces of the goods, the defendant also said "that he would furnish all the capital that was needed for the business." He further testified that it was understood that they were to continue the business for that season, which commenced about the first of August and would continue until about the first of March. It appeared that the expense of manufacturing the samples was between four dollars and five dollars, but this, under the contract, was to be borne by the defendant. The defendant, on deciding to withdraw from the enterprise, wrote Tefft, Weller Co., canceling the order for the case of goods placed with that company, and requesting that the samples delivered to the salesman be withdrawn. This is the only material evidence offered by the plaintiff bearing on the measure of his damages. The original agreement between the parties did not specify the amount of capital to be furnished or who should furnish it, nor did it provide how long the enterprise was to be continued. We are of opinion that the plaintiff was entitled to recover his share of the profits on the sale of the case of goods, an order for which had been placed, which would be ninety-one dollars. There is no evidence with respect to other damages sufficiently definite and certain to found a verdict thereon. It is probable that other goods would have been sold, but there is no basis afforded by the evidence upon which the amount of sales that might have been made can be estimated. We have, it is true, a basis for determining the amount of goods that might have been manufactured during the season, but that is not sufficient. Whether there would have been ready sales or any demand for the goods when samples were placed in the hands of agents, to go about in the trade, is too speculative for the ascertainment of damages which may be recovered of a party who violates his contract.
The respondent, through his counsel, has suggested that he will consent to our increasing the recovery to cover the plaintiff's profits on the case of goods, in the event that we decide that he is entitled to those profits, and since it is improbable that the plaintiff could adduce evidence on a new trial which would warrant a further recovery, we think the judgment should be modified by making the recovery ninety-one dollars, and as thus modified affirmed, without costs.
PATTERSON, P.J., INGRAHAM, McLAUGHLIN and CLARKE, JJ., concurred.
Judgment modified as directed in opinion, and as modified affirmed, without costs. Settle order on notice.