Heyman Cohen & Sons, Inc. v. M. Lurie Woolen Co.

• Decision Date: 22 November 1921
• Citation: 232 N.Y. 112,133 N.E. 370
• Parties: HEYMAN COHEN & SONS, Inc., v. M. LURIE WOOLEN CO., Inc.
• Court: New York Court of Appeals Court of Appeals

232 N.Y. 112

133 N.E. 370

HEYMAN COHEN & SONS, Inc.,

v.M. LURIE WOOLEN CO., Inc.

Court of Appeals of New York.

Nov. 22, 1921.

Action by Heyman Cohen & Sons, Incorporated, against the M. Lurie Woolen Company, Incorporated. From an order of the Appellate Division (197 App. Div. 797,189 N. Y. Supp. 380), reversing an order of the Special Term, which denied defendant's motion for judgment on the pleadings, and granting such motion, the plaintiff appeals. Order of the Appellate Division reversed, and that of the Special Term affirmed.

Crane, J., dissenting.

Appeal from Supreme Court, Appellate Division, First department.

Jacob R. Schiff and Samuel W. Dorfman, both of New York City, for appellant.

S. J. Rawak and A. S. Marcuson, both of New York City, for respondent.

CARDOZO, J.

The pleadings show a written contract, dated April 10, 1919, by which the plaintiff agrees to buy and the defendant to sell 200 pieces of tricotine at $3.02 1/2 per yard, delivery to be completed by June 1, 1919. The plaintiff is given the ‘privilege * * * to confirm more of the above if M. Lurie Woolen Company [the defendant] can get more.’ The 200 pieces were delivered and paid for. The plaintiff, exercising its option, demanded as much more of the cloth as defendant could procure. The defendant confirmed the exercise of the option, and delivered 16 additional pieces, with the statement that it could procure no more. In fact, it had procured 500 pieces, which it withheld. The plaintiff suffered damage for which judgment is demanded.

[1] We find no lack of consideration for the concession of an option. The privilege to order more is coupled with the promise and obligation to accept a stated minimum. 1 Williston on Contracts, §§ 44, 140. Schlegel Mfg. Co. v. Cooper's Glue Factory, 231 N. Y. 459, 132 N. E. 148, is not adverse to our conclusion. There the option stood alone; it was voluntary and revocable. Here the option is supported by the consideration of the sale.

[2][3] The defendant, then, is bound, unlessits promise is to be ignored as meaningless. Rejection on that ground is at best a last resort. Matter of Buechner, 226 N. Y. 440, 443,123 N. E. 741;Ellis v. Miller, 164 N. Y. 434, 438,58 N. E. 516; 1 Williston on Contracts, §§ 37, 137. Indefiniteness must reach the point where construction becomes futile. Uncertainties, thought to be impenetrable, are suggested in respect of subjectmatter, time, and price. They will be found to be unreal. It is said that we cannot tell whether the buyer, in exercising the option, must make demand for all that the seller can supply, or is free to call for less. We think the implication plain that the buyer is to fix the quantity, subject only to the proviso that quantity shall be limited by ability to supply. It is said the option does not state the time within which election is to be announced. We think a reasonable time is a term implied by law. Pope v. Terre Haute Car & Mfg. Co., 107 N. Y. 61, 63,13 N. E. 592. It is said the option does not embody a statement of the price. We think a ‘privilege to confirm more’ imports a privilege to confirm at the price of the initial quantity. This option was drawn by merchants. We are persuaded that merchants reading it would not be doubtful of its meaning. It was meant to accomplish something. We find no such elements of vagueness as to justify the conclusion that in reality it...