Wood v. Whitehead Bors. Co.

• Decision Date: 05 February 1901
• Citation: 165 N.Y. 545,59 N.E. 357
• Parties: WOOD v. WHITEHEAD BORS. CO.
• Court: New York Court of Appeals Court of Appeals

165 N.Y. 545

59 N.E. 357

WOOD

v.WHITEHEAD BORS. CO.

Court of Appeals of New York.

Feb. 5, 1901.

Appeal from supreme court, appellate division, Third department.

Action by Harvey Wood against Whitehead Bros. Company. From a judgment of the appellate division (56 N. Y. Supp. 1119) affirming a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought to recover a sum claimed to be due to the plaintiff under a contract made orally with the defendant in May, 1895, by the terms of which the latter had agreed to pay to the former $30 each month while he lived and while it remained a corporation, in consideration of his agreement to give up the business of dealing in molding sand obtained from sandbanks in the county of Albany, and not to engage further in it personally, or as agent for any other than the defendant. Both parties were, and had been for some years before, engaged in the business of dealing in molding sand. The $30 were paid monthly to the plaintiff until the end of the succeeding year, when further payments were refused, and subsequently the present action was brought to recover the amount remaining unpaid at the time of the bringing thereof. Prior to the making of the contract, and in the month of April, 1893, the plaintiff had executed and delivered to the defendant a writing of which the following is a copy: ‘Albany, N. Y., April 15, 1893. Received this day of Whitehead Bros. Company the sum of two hundred and fifty dollars, the receipt of which is hereby acknowledged, the same being payment in full for all debts, dues, demands, services, and all or any obligations whatsoever; and I hereby agree to render to said company my services in selling molding sand for them, and in any other way or manner they may require; and I further agree not to allow any other person to use my name in the purchase of, or the sale of, molding sand, from this date on. I hereby agree to accept from this date from the said Whitehead Bros. Co., in full compensation for the services as described above, the sum of fifteen dollars per month, the same to terminate whenever said company give me thirty days' notice that they no longer require my services. [Signed] Harvey Wood. Witness: P. J. Rorabeck.’ Thereafter the defendant paid to the plaintiff $15 a month, until about two months before May, 1895, the time when the contract now sued upon was made. The trial judge, before whom the trial was had without a jury, made findings of fact, which included the facts stated; and he found, further, that when the defendant ceased paying the $15 a month under the agreement of 1893, it had not required of the plaintiff any services whatever, nor did the plaintiff tender any services, or demand any payment under that agreement, and that both parties had treated the same as at an end, proposed to divert water from the was ever given. As conclusions of law, he found that the agreement of 1893 was not supported by mutual promises, but, if valid and enforceable because acted upon, it was abandoned by both parties; that there was a sufficient consideration for the contract of May, 1895; that that agreement was not void as being in restraint of trade; and that the plaintiff was entitled to recover. The plaintiff's judgment was affirmed at the appellate division, in the Third department, and the defendant appealed to this court.

Edgar T. Brackett, for appellant.

Harold D. Alexander, for respondent.

GRAY, J. (after stating the facts).

The appellant has raised two questions with respect to the validity of the contract sued upon. In the first place, it is contended that it was wholly without any consideration, for the reason that when it was made there was in force a prior contract, made in 1893, such purpose, and notice thereof was duly and thing required of him by the contract of [165 N.Y. 549]1895, invoking a familiar principle in the law of contracts. Vanderbilt v. Schreyer, 91 N. Y. 392, 401. I think that there are two answers to this. The writing of 1893 was of a twofold nature. It was in part an acknowledgment by the plaintiff of the receipt of the sum of $250 as payment in full for all debts, services, demands, etc., and it was in part an agreement by the plaintiff to render to the defendant his ‘services in selling molding sand for them,’ and ‘not to allow any other person to use his name in the purchase or the sale of molding sand.’ The payment of $250 would not appear to be the consideration for the agreement by the plaintiff to render future services, but rather to be simply the receipt or acknowledgment of payment of something which was then due the plaintiff. The further statement as to compensation for those services confirms this interpretation, and it is, in fact, borne out by the plaintiff's evidence that the $250 was paid him at the time on an old contract. But, if we could assume that it was the consideration for the plaintiff's agreement to render the future services, still I think it is clear that that agreement was essentially other than the contract which the parties made in 1895. The plaintiff, by his agreement of 1893, was to serve the defendant in selling molding sand for it and in any other way it might require. He agreed to become its agent, and his agreement did not compel him to cease dealing in the sand for his own account. But, by the subsequent contract of 1895, such an obligation to cease the business of dealing in Albany molding sand was imposed upon and assumed by him. Then, further, I do not think that the finding of fact that the agreement of 1893 was treated by the parties as at an end is without support in the evidence. The trial judge could reasonably infer from the facts testified to that the defendant had stopped paying to the plaintiff the $15 a month for...