Jacobson v. Sullivan

Knowlton, J. The plaintiff was the proprietor of a clothing store, and on May 15,1888, he entered into a contract in writing with the defendants, whereby he agreed to sell, and they agreed to buy, for a specified price, his lease, the good will of his store, and the store fixtures and other articles which were used in conducting his business; and he also agreed for the same considerations not to engage in the clothing business in Northampton while the defendants were carrying on the business there. The contract was to take effect on September 1st, 1888, and in the mean time the plaintiff was to continue selling goods on his own account. This part of the contract apparently covered everything pertaining to the business except the goods which were kept for sale in the store. As to them, the parties made a separate provision. How large was the stock then on hand does not appear by the bill of exceptions, but it is said in argument that it was of the value of $10,000. The parties appear to have expected that there would be, or at least might be, more than one 483 thousand dollars’ worth left unsold by the plaintiff on September 1st. In regard to these, they stipulated that the plaintiff should sell to the defendants, on “ said first day of September, so much of the general stock, goods, and merchandise of said Jacobson, to the value of one thousand dollars,” as should then “ remain and be unsold by said Jacobson,” and that the defendants should “ buy, purchase, and accept so much of the general clothing stock, furnishing goods, hats, caps, etc. of said Jacobson, not exceeding one thousand dollars in value,” as Jacobson should “have on hand and unsold on said September 1st.” The price was to be the actual cost to Jacobson, to be determined by the invoices, and in estimating the quantity to make up the one thousand dollars the value was to be determined in the same way. These provisions definitely fixed the quantity to be sold. It was to be all that remained unsold if the whole did not exceed one thousand dollars in value, but it was not to exceed that amount. The contract was incomplete without another provision; for it is evident that, while some of the goods might be worth more than the cost price, many of them would be likely to be worth considerably less than that, and if, as the parties contemplated, the quantity left unsold on September 1st should exceed one thousand dollars in value, it would be important to know which part of the goods should be transferred under the contract. To provide for this condition the contract contains the following clause, which was interlined: “ Provided that they [the defendants] shall be bound to take only such goods as they themselves shall select.” The defendants contend that the effect of this clause is to relieve them from all obligation under this part of the contract, and to leave it optional with them whether to take any goods, or any more than a single article of small value. To adopt their construction would leave an important provision of the contract without binding force in favor of the plaintiff, for whose benefit it was evidently inserted. It would render meaningless the following provisions found in the contract: “In said goods so to be purchased there shall be no single vests or no single coats,” and “ the coats and vests purchased shall be coats and vests to match.” This stipulation was for the benefit of the defendants, and relieved them from the obligation to take single vests with 484 no coats to match, them, or single coats with no vests to match them, if the whole stock should be less than one thousand dollars in value. If the defendants’ contention were correct, there would be no occasion for such a stipulation. In view of the situation of the parties, and the subject matter and the purpose of their agreement, we are of opinion that the clause in regard to selection was not intended to contradict the otherwise clear and definite provisions of the contract as to the quantity to be sold, and to nullify that part of the contract, but only to give the defendants the right to determine by selection what goods they would take to make up the quantity which they agreed to buy. Exceptions overruled.