
    Clover Condensed Milk Company, Respondent, v. Cushman Brothers Company, Appellant.
    Contract— continued dealings after its termination do not revive the contract ■— time of continuance, when not implied.
    
    Where a contract, under the terms of which goods are shipped by one party to the other, who is to sell them as agent for the shipper, is terminated in accordance with a provision thereof authorizing its cancellation, the fact that the parties, subsequent to such termination of the contract, continue the one to ship goods and the other to sell them, does nor constitute a retraction of the notice terminating the contract.
    Where a principal in answer to a proposition from an agent to extend the business of the agency into certain States, under an arrangement to continue for one year, refuses Í ‘ at present ” to accept the proposition, but subsequently accepts another proposition of the agent fixing a certain specified price per month and a certain commission on sales to be paid to the agent, such acceptance does not create a contract for one year.
    Appeal by the defendant, Ousliman Brothers Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29tli day of December, 1897, upon the report of a referee.
    
      Joseph F. Darting, for the appellant.
    
      Sa/muel A. Noyes, for the respondent.
   Ingraham, J.:

This action was brought to compel the defendant to account for sales of merchandise consigned to it as the selling agent of the plaintiff, and has resulted in a judgment in favor of the plaintiff against the defendant for the sum of $1,359.37. The amount due by the defendant to the plaintiff was not disputed. The defendant, however, set up as a counterclaim the damages sustained by a breach of two contracts, whereby the plaintiff employed the defendant to act as its selling agent for a period named.

It appears that there were two contracts between the plaintiff and the defendant, the first of which was dated March 30,1894, whereby the defendant was appointed the sole agent of the plaintiff in the cities of New York, Brooklyn, Jersey City and Hoboken, the plaintiff agreeing to pay the defendant a salary of thirty dollars per week, and three per centum on all sales made to the wholesale and retail trade, with an additional commission for collecting from the retail trade on all bills not discounted, and for deliveries. This contract contained the further provision that if at any time either party to this agreement shall become dissatisfied or wish to terminate this agreement, the same may be done by either party giving three (3) months’ notice to the other party, and this agreement or agency shall terminate after the expiration of said three (3) months.”

The other contract which it is claimed was broken was known as the Pennsylvania contract, by Avhicli the defendant ivas to act as the agent of the plaintiff in the State of Pennsylvania, except the cities of Pittsburgh and Allegheny, for a period of one year from the 28th day of February, 1896, at a salary of tliii'ty-five dollars, payable monthly, and a commission on all sales.

It seems that the parties proceeded under the New York contract until September 1, 1894, when the plaintiff wrote to the defendant a letter, stating dissatisfaction with the sales in New York, and canceling the contract, under the right, reserved to either party, by the following express notice: According to our contract we hereby cancel our contract with you, the same to expire in three months, viz., December Jth, 1894. We feel under all the circumstances that we wish to clean up & see where we stand.” The letter also contained the following clause: In canceling our contract we do not say that we would not renew after January 1st. We simply propose cleaning up and see where we stand and how things have panned out and then judge whether to go ahead again or to stop the N. Y. end altogether. If we continue we want to do so on a much larger scale.”

This letter, therefore, was an express cancellation of the contract then existing, with a statement that after January first, if they continued to do business, it would be under some different arrangement. There is no evidence to show that this notice was ever retracted, or that the plaintiff did anything to withdraw it. The secretary and treasurer of the plaintiff testified that the plaintiff dealt under the contract from the early part of March, 1894, to September, 1894, and that from September, 1894, to March 20, 1896, the plaintiff transacted business partly with Cushman Brothers and partly with Cushman Brothers Company ; that up to March 20,1896, the plaintiff was shipping milk to the defendant, and that the defendant was making returns to the plaintiff as the plaintiff’s agent. But there is nothing in the action of the parties, or in any of the correspondence between them, after September 7,1894, that recognized the existence of the old contract. The plaintiff did continue to ship goods to the defendant, and the defendant continued to sell them, but the contract itself was abrogated by this notice which was never withdrawn. The referee, therefore, was clearly right in holding that there was no breach of this contract of 1894.

As to the Pennsylvania contract, we think it is quite clear that there was no agreement that it should continue for any particular time. The negotiations from which this contract resulted appear to have been commenced by a letter dated January 28, 1896. By that letter the defendant proposed to the plaintiff- to extend the business into Boston and New England, Buffalo, New York State, and Philadelphia and Pennsylvania, and to represent the plaintiff in these markets, fixing a certain compensation to be paid them for the services, and that the arrangement should go into effect on March first, and continue for one year. To that the plaintiff replied by a letter, dated January 30, 1896, in which was stated : “ We cannot at present accept your offer, & we would not advise you to let a good opportunity slip by to arrange with others, not knowing for certain if we will ever join you in the other departments or not.” After some other correspondence, on February 18, 1896, the defendant made a new proposition, by which, after reciting the fact that they had employed a Mr. Whaley, who had been recommended to them by the plaintiff, they .proposed that the defendant should begin selling on the Philadelphia territory and Pennsylvania circuit on March first, saying: “We are convinced that Mr. Whaley would make a success of your account, as well as the others that we shall handle, and you would have the special advantage at the start in that the number of lines he shall carry will be very limited. The salary for that territory would be $35 per month only, and commission on the sales, and if that proved a success you could add the other two territories recently mentioned by us.”

This, it will be seen, is an entirely new and different proposition from that contained in the letter of January twenty-eighth. From its nature it was to be temporary, with the proposal to add the other two territories if this experiment of extending the business should prove a success. In answer to this the plaintiff said: “ We do not wish to increase our expenses, yet there are peculiar circumstances in connection with Mr. Whaley & our recommendation of him that make us wish him success. * * * And you may consider us as having accepted your proposition of 35.00 per month and 5% on condition that you waive the market of Pittsburgh and Allegheny. We have an agent there now.” In reply to this letter the defendant wrote to the plaintiff on February twenty-sixth, in which they speak of the plaintiff’s letter of the twentieth, and accept the condition as to the exclusion of Pittsburgh and Allegheny. In neither of those letters upon which the- contract was finally made was there any express reference to the letter of January twenty-eighth; and it is clear that this was a new proposition, after that contained in the letter of January twenty-eighth had been declined, which was not to be continued for any particular time, and which was necessarily subject to be discontinued at the option of either party. On March 14,1896, the plaintiff wrote to the defendant, saying that as the defendant had failed to make returns for goods shipped to them they canceled all contracts between the parties, to take effect on the first of April, which advice was confirmed by a letter of March eighteenth. It is quite clear that this contract as made was based upon the letter of February 18, 1896, and the reply thereto of February twentieth. In it there is no agreement that the contract should last one year, or any particular time, and either party had a right to terminate it at any time.

We think, therefore, that the referee was entirely right in holding that there was no breach of either of the contracts by the plaintiff and that the defendant was not entitled to recover damages.

The judgment is affirmed, with costs.

Van Brunt, P. J., Rumset and Patterson, JJ., concurred.

Judgment affirmed, with costs.  