
    Julius Kayser, App’lt, v. Anna M. Arnold et al., Resp’ts.
    
      (Supreme Court, Generral Term, First Department,
    
    
      Filed May 18, 1888.)
    
    1. Specific ferfomance—Cannot be decreed where terms of contract ARE UNCERTAIN.
    Equity cannot enforce specific performance of contract where certain material portions of it are not proven.
    2. Costs in equity action-—When a party will not be charged with COSTS ON THE FAILURE OF HIS ACTION.
    Where the proceedings on the part of the plaintiff under the alleged contract have been manifestly fair, equity will not charge him with costs on the failure of his action.
    
      Appeal from special term judgment dismissing complaint, and from order granting additional allowance.
    
      A. J. Dittenhoefer, for app’lt; Frank E. Blackwell, for resp’ts, Arnold; Sanford H. Steele, for resp’ts, Jenning.
   Bartlett, J.

The main purpose of this action is to establish the existence and fix the terms of an agreement between the plaintiff and the defendants, Anna M. Arnold and Satterlee Arnold, in reference to the manufacture and sale of certain machines for making knit goods, and to the transfer and assignment of certain rights under their patents relating to the same. The plaintiff claims that the agreement is substantially expressed in an instrument in writing, which was prepared for execution, but never was actually signed. This paper is set out at length in the appeal book; and an examination of its contents reveals what we deem to be an insuperable difficulty in the plaintiff’s case. It is impossible to deduce from this unsigned instrument the terms of a contract sufficiently clear and definite to enable a court to enforce the specific performance thereof. The first article declares that Anna M. Arnold grants to Julius Kayser the exclusive right, under her patents, to make, use or sell knit or woven fabric gloves and mitts, having cut edges, and not to exceed a certain weight per yard. A blank occurs, where the weight agreed upon was evidently intended to be inserted.

Further on, in the fifth article, it is declared that the machines and attachment to be furnished to the plaintiff, shall be used by him only in the manufacture of knit or woven fabric, gloves and mitts, having cut edges, and not exceeding a weight per yard, which is, also, left in blank. The sixth article, which relates to penalties, provides that, if the plaintiff uses the machines or attachments otherwise than as he is licensed to do by the provisions of the first article, the license and agreement may be revoked at the option of Anna H. Arnold, and shall forthwith become void.

It is obvious that both of the parties, intending to execute this instrument, meant that the rights which were conveyed and acquired, should be restricted to the manufacture of goods, the weight of which per yard should not exceed a certain maximum to be therein specified. The blanks in the proposed contract were left to be filled by figures, which the parties had agreed upon, or should subsequently agree upon. The omission to fill those blanks might not be material now, if there were any evidence in the case from which the court could ascertain what figures both parties actually had in mind. Unfortunately, however, the record is utterly barren of proof on this subject; and, under these circumstances, the instrument in question does not disclose a sufficiently definite contract to be capable of enforcement. The judgment, so far as it dismisses the complaint, should, therefore, be affirmed.

But we do not think any costs or additional allowance should have been awarded to the defendant. The plaintiff behaved fairly and honorably, and paid out $2500 in the course of the enterprise, which he has not received back. The defendants, Arnold, after giving him distinctly to understand that they proposed to sell him the machines and convey to him the rights to manufacture under their patents, preferred to deal with the plaintiff’s rivals in business, and made a sale to the defendants, Jennings. They may have been legally entitled to do this; but their course, in the whole transaction, as contrasted with that of the plaintiff, was not such as to justify a court of equity in imposing costs upon him as a consequence of his very natural effort to compel them to recognize his claim.

The judgment appealed from will be modified by striking out the costs, and, as modified, will- be affirmed without costs. The order granting an additional allowance will be reversed, also, without costs.

Van Brunt, P. J., and Macomber, J., concur.  