Bernstein v. W. B. Manufacturing Co.

Pierce, J. This is an action to recover damages for the alleged breach of a contract, which the plaintiffs claim resulted from an order that the defendant admits it placed with the plaintiffs for the delivery of certain goods. The order so given called for the sale and delivery of one hundred and seventy-four dozen boys’ wash suits, and five sets of samples thereof at $16.50 a dozen. The admitted facts and evidence show that the plaintiffs delivered to the defendant on August 20, 1918, the five sets of samples called for by the order, and that it was paid therefor by the defendant in September, 1918. The evidence also shows that the plaintiffs on December 15, 1918,' shipped to the defendant seventy-two dozen wash suits; that they were delivered in the shipping room of the defendant; that-the defendant “opened them up” and immediately notified the plaintiffs that it would not accept the goods. A memorandunl of the order was made by the representative of the plaintiffs on a printed order blank of the plaintiffs. It was not signed by the defendant, and it contained the following printed clause: “This — 591 — order is given and accepted subject to a limit of credit and determination at any time by us.” At the close of the evidence the defendant excepted to the refusal of the judge to direct a verdict for the defendant. Because of the clause above quoted the defendant contends that the agreement was invalid in its inception for want of mutuality of obligation; and rests its defence upon the accepted legal maxim that in a bilateral agreement both of the mutual promises must be binding or neither will be, for if one of the promises is for any reason invalid the other has no consideration and so they both fall. Bernstein v. W. B. Manuf. Co. 235 Mass. 425, 427. The plaintiffs admit the legal force of the rule invoked by the defendant, and reply thereto that the clause does not have the effect of reserving to the plaintiffs the right to determine the contract (which otherwise resulted from the placing and acceptance of the order) but is obviously only referable to a determination of "the limit of credit.” Giving to the clause a fair construction, we think the right of “determination” was intended to embrace the “ order ” as well as “ the limit of credit.” The plaintiffs next contend that the delivery and acceptance of five sample suits were such partial performance by the plaintiffs as afforded a sufficient consideration for the defendant’s promises, even though there was no obligation to support the contract at its inception. We do not think the agreement, which was void in its inception for want of mutuality, became an agreement which was supported by a sufficient consideration upon the delivery and acceptance of part of the goods called for in the order of the defendant, because the plaintiffs were not thereby precluded from exercising their reserved option. They were not bound to fill the balance of the order unless they chose to do so, and the defendant gained thereby no additional contractual right against the plaintiffs. Richardson v. Hardwick, 106 U. S. 252, 255. Bernstein v. W. B. Manuf. Co., supra, and cases cited. It becomes unnecessary to consider the defence of the statute of frauds. It results that the motion to direct a verdict for the defendant should have been granted, that the exceptions must be sustained, and that judgment be now entered for the defendant. G. L. c. 231, § 122. So ordered.