
    B. Charles Canet, Respondent, v. Higbie Smith, Appellant, and Seth Nichols, Copartners Trading under the Firm Name and Style of Smith & Nichols, Defendant.
    First Department,
    June 16, 1916.
    Contract — vague and uncertain contract unenforcible — agreement to pay reasonable portion of profits of business — failure of plaintiff to give proof of damage — recovery on quantum meruit — proof necessary to recovery.
    If an agreement is so uncertain and ambiguous that the court is unable to collect from it what the parties intended, the court cannot enforce it, and since there is no obligation, there is no contract.
    Thus, where there was a specific contract by which the defendant agreed to pay the plaintiff a reasonable amount from profits to be realized from the sale of merchandise manufactured by a secret process, the contract is so vague that the jury should not be allowed to render a verdict for the plaintiff where there is no evidence upon which it could base any reasonable estimate as to what might be a fair percentage of the profits, and there was no proper charge on this question.
    
      It seems, that, as the plaintiff might have recovered on a quantum meruit, it was necessary that he give evidence showing the reasonable value of the use of the formula so that the damages could be ascertained.
    Appeal by .the defendant, Higbie Smith, 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 22d day of July, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20thday of July, 1915, denying appellant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review an order entered in said clerk’s office on the same day denying appellant’s motion to dismiss the complaint made at the close of plaintiff’s case.
    
      George E. Blackwell, for the appellant.
    
      Jacob J. Alexander, for the respondent.
   Smith, J.:

The claim of the plaintiff as outlined in his amended complaint is upon an agreement with defendants “in consideration, of the plaintiff giving to the defendants certain secret processes, formulas and compounds, together with the .methods of the manufacture thereof and the elaborations of such formulas to be thereafter made by plaintiff, to pay to the plaintiff a reasonable amount from the profits to be realized from the sale of merchandise manufactured from the said secret processes, formulas and compounds and elaborations thereof as long as the said defendants continued to manufacture and sell the same.” The complaint further alleges that the plaintiff did give to the defendants certain secret processes, and continued for a long period of time to elaborate and improve the same for the benefit of the defendants, and performed all the terms of the agreement upon his part, and that the profits realized by the defendants from the sale of merchandise manufactured from such processes, formulas and compounds amounted to $75,000, and that $25,000 was a reasonable amount of such profits which were due to the plaintiff under such contract, for which amount judgment was demanded. At the time of the giving of these secret formulas the plaintiff was in the employ of the defendants at a stated salary, which was at all times paid, and he continued in that employ for a long time thereafter and until 1913. He claims to have been employed as a salesman only, and that the contract sued upon was a contract apart from his service as salesman.

In the case of Bluemner v. Garvin (120 App. Div. 29) it was held that a contract by one architect employing another to prepare plans for a public building for a share of the commissions received, which does not fix the amount of the commissions to be divided, or contain anything defining what would be a fair division of the commissions, or whether the commissions should be the gross or net commission remaining as profits after deducting the necessary expenses, is too uncertain, ambiguous and indefinite for enforcement. In that case Mr. Justice Clarke, now the presiding justice, reviews the authorities and gleans from them the rule of law that if an agreement is so uncertain and ambiguous that the court is unable to collect from it what the parties intended, the court cannot enforce it, and since there is no obligation there is no contract. In Varney v. Ditmars (217 N. Y. 223) it was held that for the validity of an executory contract the promise or the agreement of the parties to it must be certain and explicit, so that their full intention may be ascertained to a reasonable degree of certainty. Their agreement must be neither vague nor indefinite, and, if thus defective, parol proof cannot be resorted to. In that case the plaintiff, an architect and draftsman, was employed by the defendant at a salary of thirty-five dollars per week. Defendant said to him that he was going to give him five dollars more a week, and then said: If you boys will go on and continue the way you have been and get me out of this trouble and get these jobs started that were in the office three years, on the first of next January I will close my hooks and give you a fair share of my profits.” Plaintiff then continued in defendant’s employment and was paid forty dollars a week until discharged later. Some of the work had been completed at the time of the discharge. Plaintiff sought to recover in the action for services from just prior to the time of the alleged discharge and to January first thereafter at the rate of forty dollars per week, and also for a fair and reasonable percentage óf the net profits of defendant’s business from the time of the conversation up to the said date. It was there held, “ That the statement alleged to have been made by the defendant about giving the plaintiff a fair share of his profits is vague, indefinite and uncertain, and the amount cannot be computed from anything that was said by the parties or by reference to any document, paper or other transaction. The minds of the parties never met upon any particular share of the defendant’s profits to he given the employee, or upon any plan by which such share could be computed or determined.” In the opinion in that case Judge Chase reviews the authorities, citing the Bluemner case, heretofore cited, and other cases, and holds the rule stated in the Bluemner case.

The plaintiff here has recovered upon a contract so vague that the minds of the parties could not have met thereupon, without any proof upon which the jury could base any reasonably certain estimate of what might be a fair percentage of the profits, and without any rule of measurement given in the charge by which any determination whatever could be made of what would be a reasonable percentage of the profits. The jurors were left to estimate capriciously what they might think was a fair percentage of the profits.

In Varney v. Ditmars (supra, 231) in the prevailing opinion it is stated: The rule stated from the United Press case does not prevent a recovery upon quantum meruit in case one party to an alleged contract has performed in reliance upon the terms thereof, vague, indefinite and uncertain though they are. In such case the law will presume a promise to pay the reasonable value of the services.” Under an allegation of a specific contract proof may be given which would establish a right to recover upon quantum meruit. (Terwilliger v. Ontario, C. & S. R. Co., 73 Hun, 335.) So under this complaint the plaintiff might have shown the reasonable value of the use of these formulas, and upon proof of the contract might have recovered such sum. (See Nilsson v. De Haven, 47 App. Div. 537; affd., 168 1ST. Y. 656.) A judgment could only stand, however, upon such specific proof and upon a verdict of a jury specifically instructed as to the proper basis of their estimate. The judg-' ment and order should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.

Clarke, P. J., Laughlin, Scott and Davis, JJ., concurred.

Judgment and order denying motion for new trial reversed and new trial ordered, with costs to appellant to abide event; order denying motion to dismiss complaint affirmed. 
      
      
        United Press v. New York Press Co. (164 N. Y. 406).— [Rep.
     