
    Otto Meurer, Respondent, v. The American Moving Picture Machine Company, Appellant.
    (Supreme Court, Appellate Term,
    December, 1908.)
    Contracts: Interpretation ef contract — Conditions precedent — What are conditions precedent: Performance of contracts — Particular acts constituting breach — What constitutes refusal to perform.
    Where plaintiff, in pursuance of a contract of employment with a corporation for a definite term, purchased certain shares of stock which, in the event of his death or his termination of the contract by a thirty days’ notice as therein provided for, the corporation agreed to repurchase at the same price or procure a purchaser therefor, a notice given by plaintiff only seven days before the end of the term of employment was not a compliance with the contract of employment.
    The contract only requiring the .corporation to procure a purchaser for the stock at the original price as soon as possible after the thirty days’ notice liad been given, the omission in the complaint, in an action for refusal and neglect to repurchase the stock or procure a purchaser therefor, to allege that the defendant with a reasonable effort could have found a purchaser for the stock at the agreed price was fatal; and a judgment overruling a demurrer thereto will be reversed and the demurrer sustained, with leave to plaintiff to plead over.
    Appeal from an interlocutory judgment of the City Court of the city of New York, overruling the demurrer interposed by the defendant to the complaint.
    Robert Leslie Moffett, for appellant.
    Amend & Amend (John E. Donnelly, of counsel), for respondent.
   Ford, J.

Defendant-appellant employed plaintiff-respondent by contract in writing of which the parts pertinent upon this appeal are as follows:

"First. The party of the first part hereby engages and employs the party of the second part in the capacity of its ■assistant secretary at a salary of thirty dollars per week, the same to be paid him weekly, such employment to begin on the 11th day of ¡November, 1907, and to terminate on the 2nd day of January, 1908, unless sooner terminated as hereinafter provided. And said party of the first part hereby agrees to have said party of the second part elected to said office at the next meeting of its Board of Directors.
“Second. The said party of the second part hereby agrees to enter the employ of the said party of the first part in the capacity and upon the salary aforesaid, and covenants that he will devote his time and attention and will use his best endeavors in selling and'promoting the sale of the goods and merchandise which may be manufactured by said party of the first part.
" Third. Upon the termination of this agreement (unless sooner terminated by notice as hereinafter provided) the same may be renewed upon such terms and for such period as may be agreed upon between the parties hereto.
“Fourth. That said party of the second part agrees to purchase from said party of the first part, and hereby subscribes for, and the party of the first part hereby agrees to sell to him, two hundred shares of its capital stock, the same to be fully paid in and non-assessable, at the price of One thousand dollars.
“Fifth. This agreement may be terminated by the said party of the second part at any time during the period of his employment upon his giving thirty days’ notice in writing of his intention so to do, and in such event the said party of the first part agrees to repurchase said stock at the price of One thousand dollars or procure a purchaser therefor at such price, as soon as possible after such notice shall have been given.
“ It being further understood and agreed that in the event this contract is terminated by the death of the party of the second part, that then the party of the first part will, upon demand, secure another party to invest said ($1,0'00.00) one thousand dollars and refund to his representatives or assigns, said sum of One thousand dollars upon their surrendering said shares of stock.”

The complaint alleges the contract, the employment, and the purchase of the stock by the plaintiff. It then continues :

“ That heretofore and on or about the 26th day of December, 1907, the plaintiff duly notified the defendant in-writing of his intention to terminate said agreement, a copy of which is hereto annexed and marked Exhibit A,’ at the expiration of thirty days from said date, and he thereupon demanded that the defendant repurchase the two hundred- shares of its capital stock at the sum of One thousand dollars heretofore purchased by the plaintiff or that the defendant procure a purchaser therefor at such price as soon as possible, and plaintiff tendered said shares of stock to the defendant.
“ That the defendant has • refused and neglected to repurchase said stock or to procure a purchaser therefor.”

For such refusal and neglect to perform, plaintiff demands damages in the sum of one thousand dollars with interest. A demurrer was interposed, which was overruled and defendant appeals.

It is clear that there was only one contingency, barring that of death, in which defendant would be obligated to repurchase the stock, and that was in the event of the termination of the contract by written notice from plaintiff to defendant thirty days before such termination became effective. At the time the notice was given, the contract of employment had only seven days more to run. At the end of that time it would have expired by virtue of its own terms, and could have been continued only by another independent agreement between the parties. There is no hint that such agreement was made. Hence the notice of plaintiff’s intention to terminate the contract related to 'a time when there would be no contract to terminate.

The intention of the parties was obviously that the contract must have been terminated at some time during its life, by notice in writing given thirty days previous to that time. Such a notice given only seven days before the end of the contract period was not a performance by the plaintiff of that provision of the contract which it was necessary for him to perform in order to obligate defendant to repurchase the stock, or to procure a purchaser for it.

Moreover, the omission to allege that the defendant, with reasonable effort, could have found a purchaser for the stock at the agreed price is fatal to the complaint, since paragraph Fifth ” of the contract only requires it to procure a purchaser therefor at such price, as soon as possible after such notice shall have been given.”

The judgment of the court below should be reversed and the demurrer sustained, with leave to plaintiff to plead over, on payment of costs in this court and in the court below, within six days.

Giegerich and Hendrick, JJ., concur.

Judgment reversed and demurrer sustained, with leave to plaintiff to plead over, on payment of costs in this court and court below, within six days.  