Gurfein v. Werbelovsky

• Court: Connecticut Supreme Court
• Citation: Gurfein v. Werbelovsky, 97 Conn. 703, 118 A. 32 (Conn. 1922)
• Decision Date: 04 August 1922
• Parties: GURFEIN v. WERBELOVSKY.
• Writing for the Court: BEACH, J.

118 A. 32

97 Conn. 703

GURFEIN v. WERBELOVSKY.

Supreme Court of Errors of Connecticut.

August 4, 1922

Appeal from Superior Court, Fairfield County; William M. Maltbie Judge.

Action by Nathan Gurfein against Abraham Werbelovsky, for damages for breach of a contract to sell and deliver goods, brought to and tried before the superior court on demurrer to complaint. Demurrer sustained, and on plaintiff's refusal to plead further judgment entered for defendant. Plaintiff appeals. Error and cause remanded.

The complaint alleges that on October 20, 1919, the defendant made a contract with the plaintiff, doing business under the name of the Bridgeport Glass Company, in the form following:

" October 29, 1919.

" Bridgeport Glass Co., Bdgpt., Conn.-Gentlemen: We have this day accepted and entered your order for 5 cases of plate glass, the following: 1 case 60" wide; 1 case 70" wide; 2 cases 80 wide; 1 case 90" wide-in the following brackets 25 to 50 square feet at 98 cents per sq. ft. and 50/100 at one dollar per sq. ft. f. o. b. N.Y. City.

" The above cases are to be shipped within 3 months from date. You have the option to cancel the above order before shipment.

" Yours truly, J. H. Werbelovsky's Son,

" By Joseph Rosenblum."

That the plaintiff frequently demanded delivery of the goods, but defendant has refused to ship the same, though more than three months has elapsed. Damages based on an increase in the market price over the contract price are demanded.

Defendant demurred to the complaint on the following grounds:

(1) Because it appears from said instrument Exhibit A that the same was of the nature of an option, and that said option was without consideration, and was therefore void and of no effect.

(2) Because it appears from said instrument Exhibit A that the same was of the nature of an option, but it does not appear that the same was ever properly exercised.

(3) Because it appears that said instrument by reason of the uncertainty of the terms and the lack of mutuality in the obligations it purports to create, is unenforceable as a contract, and is wholly invalid, void, and of no effect.

Theodore E. Steiber, of Bridgeport, for appellant.

Philo C. Calhoun, of Bridgeport, for appellee.

BEACH J.

The writing sued on is in the form of a letter from the defendant to the plaintiff accepting an antecedent proposal to buy five cases of glass on terms set forth in the acceptance. The final sentence of the letter is as follows: " You have the option to cancel the above order before shipment." It is this phrase which gives rise to the claim that the contract is void for want of mutuality. The defendant's acceptance appears to be unconditional, and the objection is that the plaintiff in making his proposal reserved the right to cancel it at will. If that is so, the demurrer must be sustained.

" To agree to do something and reserve the right to cancel the agreement at will is no agreement at all." Ellis v Dodge Bros. (D. C.) 237 F. 860.

It might be said at the outset that the objection begs the entire question, for it is not clear that the " above order" as originally made contains any reservation at all, but as the case has been briefed and argued on the assumption that the buyer's privilege of cancellation at any time before shipment is one of the terms of the contract we proceed to treat it as such, and to inquire whether on that understanding an enforceable contract ever came into existence; that is whether the seller ever had any right, the exercise of which the buyer could not prevent or nullify, to compel the buyer to take the goods an pay for them. If so, there was a promise for a promise and the contract is valid in law, for the question before us is not whether the contract is mutual in the sense in which that adjective is used to influence the discretion of a court of equity in decreeing...