Drake v. Vorse

Adams, J. i. contbact: of. — The abstract does not purport to contain all the evidence, and the findings of fact cannot be reviewed. We may, however, consider whether under a proper construction of the contract the conclusion reached can be justified. Counsel differ widely as to the obligation which it imposes upon the defendant. It binds the plaintiff to make what castings the defendant may want. It does not expressly bind the defendant to anything except to pay in cash, on delivery the prices specified. But conceding that it bound him to order and take of the plaintiff all the castings he should want, it could not, we think, have the effect to preclude him from entering into a partnership, nor would it become obligatory upon the firm. It was certainly the defendant’s privilege to discontinue business at any time when it should appear to him that his interest demanded it, and that, too, without becoming liable to the plaintiff in damages. He did discontinue business upon his individual account. After that he did not individually want or need any castings, and as the firm was not bound to take any, we do not think that the defendant became liable. There were two findings of fact evidently deemed material by the referee which we have not set out. One was, in effect, that the plaintiff incurred expense for the special purpose of making the castings. But we cannot think that the fact that she incurred such expense should be allowed to affect the construction of the contract. The necessity of incurring such. [420] expense, if there was no general demand for such castings, would have rendered it prudent for the plaintiff to require of the defendant a contract to take and pay for enough castings to justify the expenditure. But we cannot interpolate provisions on the ground that the plaintiff’s interest demanded them, nor interpret the terms used in the light of her interest. It was also found that at the time the contract was executed the defendant made a definite statement to the plaintiff, of the amount of castings he should probably need. It is not claimed, however, that he was bound to take the amount mentioned. The plaintiff seeks to recover simply upon the written contract. In our opinion the court erred in rendering judgment upon the report, and the case must be Neversed.