Hadden v. Dimick

By the court, Barnard, J. The agreement between the parties was properly admitted. It was duly acknowledged by one of the plaintiffs’ firm, and by the defendant, to have been properly signed, and was attested by a subscribing witness at then* request. It is clear that the partners authority to execute the sealed instrument was ratified by the subsequent acts of the plaintiffs under it, even if there was [226] a failure of proof of authority existing at the execution of the paper. The agreement was mutual—defendant agreed to deliver to plaintiffs “ all the blankets of his manufacture, to be sold by them.” This must be fairly construed to mean that the plaintiffs agreed to sell the blankets which defendant should deliver them for that purpose, and the parties mutually agree upon the commission for such sales. The agreement was not in restraint of trade. No restriction is put upon the defendant; he may manufacture as largely as he will. Of course it was for the interest of both parties to manufacture and sell if a profit could be made. The agreement did not permit the defendant to sell blankets of his manufacture himself without breach of the agreement ; he had agreed to “ consign exclusively ” to the plaintiffs “ all the blankets of his (defendant’s) manufacture.” If the agreement is established and is not void, and did not permit the defendant to sell directly blankets of his manufacture, then as the defendant did sell the blankets as specified in the complaint, it has been broken, and some defense must be made to it or the plaintiffs are entitled to recover. The paper must be held to contain the true agreement between the parties. All preceding and contemporaneous agreements were merged into the writing, and it was therefore right to reject the evidence offered as to a previous parol agreement in addition to the writing itself. There remains but the alleged promise by the plaintiffs to be defendant’s sureties upon a contract to be obtained of the United States Government by defendant to sell his blankets to the Government. If this fact is true it is no defense. The plaintiffs were not bound to guaranty that the defendant would make and deliver to the Government the blankets within the time and in the manner called for by the Government. They had the right to recede if they had promised. It can have no effect on this agreement. The plaintiffs, upon the whole case, were entitled to recover. There seems at the trial to have been no objection as to the amount of the recovery. A verdict was directed for seven and a hah [227] per cent on the sales to the Government. The plaintiffs were ready and willing to perform on them part, and that defendant made the sale without their assistance, and not through them, would not reheve the defendant from payment of the full commission. Judgment affirmed with costs.