S. Montgomery Roosevelt and Montgomery Roosevelt Schuyler, as Copartners, Comprising the Firm of Roosevelt & Schuyler, Respondents, v. Simon I. Nusbaum, Appellant

S. Montgomery Roosevelt and Montgomery Roosevelt Schuyler, as Copartners, Comprising the Firm of Roosevelt & Schuyler, Respondents, v. Simon I. Nusbaum, Appellant. Instrument giving to a party the “ sole agency ” for certain merchandise—when it is a contract of sale and does not create an agency—consideration therefor — the statate giving the Appellate Division power to give the judgment to which a party is entitled is imperative. An instrument signed by the general agents for a particular brand of wine and delivered by them to one Nusbaum, a wholesale liquor dealer doing business in the city of Albany, N. Y., stating “ we have sold and will sell in the future ” such brand of wine at certain specified prices, and that “Mr. S. I. Nusbaum will have the sole agency for our wine in Albany, N. Y., provided he continues to handle the wine in fair quantities,” does not create an agency, but is a simple . contract of purchase and sale. The purchase and sale by the liquor dealer of the wine in fair quantities is a valid consideration for the covenant of the general agents to give the liquor dealer the “sole agency ” of the wine in the city of Albany, and if the general agents violate the covenant while the liquor dealer continues to handle the wine in fair quantities the latter may recover damages for the breach. The fact that the liquor dealer made no covenant to purchase the wine, or to handle the same in any quantity whatever, does not render the general agents’ covenant void for want of mutuality and entitle them to violate it at any time. The reason why the Appellate Division has held that the provision of section 1187 of the Code of Civil Procedure, authorizing that court to grant to either party in certain cases any judgment to which he may be entitled, is practically inoperative, considered. Appeal by the defendant, Simon I. Nusbaum, from a judgment of the Supreme Court in favor of the plaintiff’s, entered in the office of the clerk of the county of Albany on the 23d day of November, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of November, 1901, setting aside the verdict of a jury in favor of the defendant and directing judgment for the plaintiffs for the full amount demanded in their complaint and granting an extra allowance of costs, which order also denied the defendant’s motion for a new trial made upon the minutes. On June M, 1895, the plaintiffs, who áre the general agents in this country for the sale of wine known as Ruinart Brut Champagne, executed and delivered to the defendant a paper of which the following is a copy: “ Office of S. I. Eusbaum, “Wholesale Liquor Dealer, “ 524 Broadway. Telephone 1244. “ Albany, E. Y., June 14dh, 1895. “We have sold and will sell in the future (except duty or price •• in general should change) to Mr. S. I. Eusbaum, of Albany, E. Y., our Ruinart Brut Qts. at'$29.90 & Pts. at $31.90, & will allow him for spending money, &c., two dollars per case, amount to be deducted on each invoice. Terms 4 mts. or 3f0 off 30 ds. “Mr. S. I. Eusbaum "will have the sole agency for our wine in Albany, E. Y., provided he continues to handle the wine in fair quantities. “ROOSEVELT & SOHUYLER, “ Per S. H. May.” The defendant thereupon purchased and sold divers quantities of said wine in the city of Albany until about Eoveinber, 1899, when, the plaintiffs gave him notice -that they would no longer give him the discount which they had given him and practically discontinued the relations under the claimed contract. At this time the defendant was owing the plaintiffs the sum of about $1,200 for wine purchased under the agreement. To recover this sum this action was brought against the defendant. The defendant, admitting the plaintiffs’ claim, interposed an answer claiming damages from the plaintiff for a breach of the plaintiffs’ contract to give him the sole agency within the city of Albany, claiming that he, the defendant, had performed all the conditions of the contract. Upon the trial evidence was given as to the amount of wine handled, and at the close of the trial the trial judge, reserving his decision upon the motions made, submitted to the jury two questions, first, whether the defendant had handled this wine in fair quantities; secondly, if so, and the contract had been broken on the part of the plaintiffs, to what extent the defendant was damaged. The jury brought in a verdict that the contract had been broken on the part of the plaintiffs and that the defendant was damaged to the extent op $500. Thereafter the court set aside this verdict of the jury, and ordered judgment for the plaintiffs for the full amount of their claim, with costs and an extra allowance. From this judgment and from the order setting aside the verdict, as well as from an order thereafter made refusing to grant a new trial upon the minutes, the defendant here appeals. Devoid Muhlfélder and FranTdin M. Danaher, for the appellant. Tracey e& Cooper, for the respondents. [MAJORITY — Smith, J.] Smith, J. The argument in this case has been made upon what seems to me an entire misconception of the legal relations of these parties. Counsel have assumed that the relationship of principal and agent existed and the action was to be determined by the application of rules of law applicable to that relationship. I am unable in this case to discover any agency whatever. Here is a simple contract of purchase and sale. It is true that there is a covenant under certain conditions to give to the defendant the “ sole agency.” The meaning of this covenant, however, is plain. The plaintiffs were thereby bound not to sell this wine to others within the city of Albany. It does not create an agency. In all agencies there is a relation of trust and confidence by reason of which the legal right to discontinue that relationship is more strongly implied, and any stipulation providing for its continuance must be perhaps the more clearly stated. Where, as here, however, there is no relation of trust or confidence, and a simple contract of purchase and sale, the inquiry is, first, whether there was an intention to create a continuing contract ; and, secondly, whether a full consideration exists for such a covenant. The intention expressed in the proposition of the plaintiffs seems to me clear. The wine was to be sold to the defendant at a certain price, the payment of which constituted the consideration for that sale. The covenant for the sole agency within the city of Albany was made upon condition that the defendant should handle this wine in fair quantities. The verdict of the jury has determined that the condition of this covenant had been performed, and that the wine has been handled by the defendant in fair quantities. I am unable to see, therefore, why the covenant of the plaintiffs was not a binding obligation upon them at the time when it was broken and why defendant was not at that time .entitled to his damages for the breach thereof. The plaintiffs’ counsel, however, contends that inasmuch as the defendant made no covenant to purchase wine or to handle the same in any quantity whatever, the plaintiffs’ covenant was void for want of mutuality. To this, however, we cannot agree. In L'Amoreux v. Gould (7 N. Y. 349) the head note in part reads: “ The rule laid down in Chitty on Contracts, that if one party to an agreement was never bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality, is too broadly stated. It is confined to cases where the want of mutuality would leave a party withotit a valid consideration for the promise at the time it is to be performed.” In Marie v. Garrison (83 N. Y. 14) the rule of law is stated, “ Where a proposition is made by one party accompanied by a promise, a voluntary performance by another to whom the proposition was made of the requirements in consideration of the promise, constitutes a consideration which will uphold the promise and make it binding.” In Parsons on Contracts (Vol. 1 [8th ed.], p. 466) the text reads: “ The party making the promise is bound to nothing until the promisee within a • reasonable time engages to do or else does or begins to do the thing which is the .condition of the first promise. Until such engagement or such doing, the promisor may withdraw his promise because there is no, mutuality, and, therefore, no consideration for it. * * * But if, without any promise whatever, the promisee does the thing required, then the promisor is bound on another ground. The thing done is itself a sufficient and a completed consideration, and the original promise to do something if the other party-would do something is a continuing promise until that other party does the thing required of him.” (See, also, Wakeman v. W. & W. M. Co., 101 N. Y. 205.) In the proposition of the defendant the “ sole agency ” was only upon condition of the purchase and sale in fair quantities. The performance of that condition, the purchase and sale by the defendant in fair quantities, Avas a legal and valid consideration for the plaintiffs covenant to continue the “sole agency” to the defendant. We are of opinion, therefore, that the learned trial judge erred when he held, as he apparently has held, that the.plain tiffs had the right at any time to treat the proposition made as no longer in force. The learned trial judge apparently endeavored to. bring this case within the special provisions of section 1187 of the Code of Civil Procedure, and the defendant has asked if we reverse the court below that we direct the entry of judgment for the amount of plaintiffs’ claim less the $500 found by the jury as damages due for the plaintiffs’ breach of contract. This we are unable to do for two reasons : First, the trial judge has set aside this verdict. There is nothing to show that he has not set it aside as against the weight of evidence. But, if he had not ordered the verdict set aside and had simply directed judgment for the plaintiffs, as seems to be contemplated by section 1187 of the Code, if we order the judgment requested by the defendant, the plaintiffs will be deprived of their right to review before the trial judge or in this court the verdict of the jury as having been against the weight of evidence or upon any other ground upon which they might challenge the verdict. For such reason the court has held practically inoperative the provisions of section 1187 authorizing the Appellate Division to grant to either party any judgment to which he may be entitled, when, in the court below, the decision upon a motion for a nonsuit or directed verdict has been reserved and the verdict of the jury taken upon special questions, which verdict of the jury has been included in the record upon appeal after the decision upon the motions reserved. The judgment and order must, therefore, be reversed and a new trial ordered. All concurred; Parker, P. J., and Kellogg, J., in result. Judgment and order reversed on law and facts and new trial granted, with costs to appellant to abide event.