King v. Krischer Manufacturing Co.

Martin, J. The amended complaint in this action attempts to set forth a cause of action for the breach of an alleged oral contract, by the terms of which, according to plaintiff, the defendant undertook to sell to the plaintiff its product, consisting of buckles and other novelties, agreeing not to sell such product to any customer of the plaintiff during the term of the contract. Damages in the sum of $5,000 are demanded because of sales to a customer of plaintiff. The defendant pleads a general denial. • In the 3d paragraph of the complaint it is alleged defendant agreed to sell “ the product of defendant’s manufacture.” What plaintiff agreed to purchase is indicated in the" 4th paragraph as “ a quantity of merchandise.” This complaint does not allege that plaintiff agreed to purchase either (a) the defendant’s entire output of merchandise of the kinds referred to, or (b) all of such merchandise required by plaintiff during the term. According to plaintiff’s allegations, the quantity which plaintiff agreed to purchase was not agreed to by the parties. It does not appear from the complaint that the prices of the articles of merchandise were fixed in the alleged agreement. The complaint sets it forth in this manner: “ at prices then and there stated, and subsequently to be established during the course of their business relation.” This may mean much or nothing. The prices of two numbers may have been fixed among a thousand. It would be quite unfair to allow a pleader to cover a fatal defect in this way. No contract is alleged because it does not appear that there was any meeting of the minds of the parties as to either the quantity to be taken or the prices at which the goods were to be taken. Furthermore, the pleader has not indicated that the buyer agreed to take any quantity stated or determinable by any measure whatever. _ It is the respondent’s contention that the agreement forming the basis of this cause of action, being oral, cannot be set forth [586] in hcec verba. A complaint need not state every detail of a contract, but must show the existence of its essential elements. There is no contract alleged in this case. The motion must stand or fall on the complaint, irrespective of the affidavits, because defendant is seeking to dismiss the complaint on the ground that it does not state a cause of action. The 3d paragraph of the complaint introduces another subject and alleges that for a good and valuable consideration the plaintiff agreed that during the period of the contract the manufacturer would not sell to any competitor or customer of plaintiff. In the 7th paragraph of the complaint it is alleged that defendant sold to a. competitor of plaintiff in order to injure plaintiff in its business. This introduces a secondary theory of recovery. If there was a binding contract, defendant would be hable for a breach of its agreement not to sell to any one then a competitor of plaintiff. Defendant’s motive would not be material. If, on the other hand, defendant was not obligated to refrain from selling to a competitor, then it does not become hable in damages because of its motive in making such sales, because it desired thereby to injure plaintiff. As there was no contract, its understanding in this respect was immaterial, and it was free to sell to those who were then plaintiff’s competitors. The 5th paragraph of the complaint alleges that plaintiff did at her own cost introduce defendant’s merchandise to persons needing the same, it having been alleged at the end of the 3d paragraph that plaintiff was to advertise defendant’s product at her own expense and to sohcit sales of same. It is argued that “ The promise of the defendant became binding after performance by the plaintiff.” But we have seen that there was no contract because of a failure of the minds of the parties to meet on essential elements; and there is not an attempt to recover the value of advertising services rendered. Moreover, we have not a situation where defendant is estopped to controvert the meaning of some term, which meaning might supply the missing essentials. This is an action to recover damages for breach of a negative, oral agreement not to sell to a competitor. Plaintiff’s theory is contract and not estoppel. The order should be reversed, with ten dollars costs and disbursements, and the motion to dismiss the complaint granted, with ten dollars costs, with permission to plaintiff, upon payment- of said costs, to apply at Special Term for leave to serve a further amended complaint. Dowling, P. J., and Proskauer, J., concur; Merrell and O’Malley, JJ., dissent.