Westhill Exports, Limited v. Pope

Decision Date09 May 1963
Citation240 N.Y.S.2d 961,191 N.E.2d 447,12 N.Y.2d 491
Parties, 191 N.E.2d 447 WESTHILL EXPORTS, LIMITED, Appellant, v. Generoso POPE, Jr., et al., Respondents.
CourtNew York Court of Appeals Court of Appeals

Martin Evans and William S. Evans, New York City, for appellant.

John B. Alfieri, New York City, for respondents.


In this action brought to recover commissions, plaintiff alleged that it was employed by defendant to procure for them a 10-year contract to supply newsprint to defendants and that plaintiff was to be paid a commission of 3% of the gross sales by the seller according to the custom of the newsprint trade, that plaintiff found a seller willing to sell on defendants' terms but defendants refused to consummate the transaction.

Special Term held that plaintiff alleged a contract of employment by defendants and that the writing relied on tended to support its claim and that plaintiff would be entitled to recover its damage if, upon proof, it was found that defendants employed plaintiff and refused to engage in the contract procured upon their terms and breached their contract with plaintiff.

The Appellate Division held that: 'Fairly read, the letter reserves to defendants the right to accept or reject any proposed contract plaintiff would secure and, therefore, defendants' rejection of a proposed contract did not ground the action for breach of agreement which is attempted to be alleged in the complaint.'

Justices BREITEL and STEUER dissented, in part, being of the opinion that the complaint was defective only in that it failed to allege that the mill procured by plaintiff was not only willing to supply defendants' needs as authorized in the letter, but also able to perform, and that plaintiff should be given an opportunity to replead.

The sufficiency of the complaint must be adjudged by the wording of the letter thereto annexed, which reads as follows:


'Executive Offices

'1151 Third Avenue

'New York 21, N. Y.

'TRafalgar 9-1111

'January 26, 1959

'Mr. J. C. McNicoll

'Lennex Exports Limited

'4920 Western Avenue

'Montreal, P.Q., Canada

'Dear Sir:

'Concerning our various conversations with you we herewith authorize you to begin negotiations in our behalf for contracts covering the following:

'Approximately 2,500 tons yearly of standard Canadian newsprint, 32 pound basis, quality to be accepted by us in rolls 30 and 60 inch widths in the proportion to be determined in due course or from time to time. Diameter to be maximum 35 inches or any other we may stipulate from time to time.

'Price, $134 per ton of 2000 lbs. F.O.B. our siding New York freight area.

'Terms of the contract to be for 10 years.

'The contract we are authorizing you to negotiate on our behalf is to be entertained direct between ourselves and the mill in Canada, your capacity being that of agent of the mill and all the terms of the contract being the normal one now in existence between Mill-U.S. Publishers.

'Would you kindly confirm to us at your earliest convenience the name of the mill and let us have a prototype of the contract for examination by our attorneys as well as a sample of the paper.

'Very truly yours,

'/s/ Generoso Pope, Jr.

'Generoso Pope, Jr.



The reason for the rejection of the contract by defendants had nothing to do with the merits of the deal, or defendants' need for the newsprint, but was due to their subsequently formed desire to deal with another paper mill than the one procured by plaintiff. Defendants' letter reads as follows:


'Liveliest Paper in the World 15cents

'1151 Third Avenue

'New York 21, N. Y.

'Telephone: TRafalgar 9-1111

'July 31, 1959

'Mr. J. C. McNicoll

'Lennex Exports Limited

'4920 Western Avenue

'Montreal 6. Canada

'Dear Mr. McNicoll:

'In the absence of Mr. Pope who is on vacation, I am replying to your letter of the 22nd.

'Since I last spoke to you, sometime in March, we have been able to resolve our differences with the Tenafly Printing Company. We finally have a contract for the printing of The National Enquirer. However, under the terms of this agreement, the printer must supply the newsprint.

'I am sure you can now appreciate our reluctance in further pursuing the objectives outlined in our letter of January 26th, before this matter was settled.

'We appreciate your past cooperation and regret our present inability to entertain a contract with a Canadian mill.


'Dino M. Gallo,

General Manager'


The contract between the parties, formed by this exchange of correspondence, does not make payment of commissions dependent upon the acceptance by defendants of the deal procured by plaintiff. The contract shown by the correspondence is specific as to the quantity and nature of the newsprint to be procured, as well as its price, and, although the quality was 'to be accepted by us', that did not signify that defendants were given the right by caprice or whim to refuse to approve....

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