
    David Howie and Others, Appellants, v. Rachel Kasnowitz, Respondent.
    
      Contract under seal—not modified by an unexecuted parol contract — the seal imports a consideration — its absence is an affirmative defense — contract as to the manufacture of certain articles — when not enforcible.
    
    A contract or covenant under seal cannot be modified by a parol, unexecuted agreement.
    The presence of a seal upon an agreement imports a consideration. In an action upon such an agreement, the absence of a consideration is an affirmative defense which must be pleaded.
    In an action brought to recover damages for the breach of a written contract under seal, it appeared that the contract, which was set forth in the complaint, provided that the plaintiffs should manufacture purse frames for the defendant for a price not to exceed one dollar and ten cents per gross, plus a profit of twenty-five per cent; that the defendant should take all of the frames that the plaintiffs should make; that the plaintiffs should not sell the frames to any other person or firm except at a higher price than was paid by the defendant; that the plaintiffs should commence the delivery of the frames not later than six weeks from the date of the contract and that, in case they should not be able to fulfill their part of the contract, they should not be subject to a suit for a breach thereof.
    It was not alleged that the plaintiffs ever manufactured any of the purse frames or tendered them to the defendant, the only allegation of the breach of the contract being that on a certain day the defendant refused to comply with the provisions thereof.
    
      Held, that the complaint was demurrable;
    That the contract did not impose any valid obligation upon either party thereto, and that, as it was entirely executory, there had been no breach thereof;
    That the whole contract was so indefinite and uncertain that it could not be enforced.
    Appeal by the plaintiffs, David Howie and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 14th day of January, 1903, upon an interlocutory judgment entered in said clerk’s office on the 3d day of December, 1902, sustaining the defendant’s demurrer to the plaintiffs’ complaint, with notice of an intention to bring up for review upon such appeal said interlocutory judgment.
    
      Charles G. F. Wahle, for the appellants.
    
      J. Charles Weschler, for the respondent.
   Ingraham, J.:

The action is brought to recover for a breach of a contract in writing and under seal. By this contract the plaintiffs agreed to make of tin a certain purse frame known as Style No. 27 B.,. and to deliver the same to the defendant for a price not to exceed one dollar and ten cents per gross of said frames, and to add a profit of twenty-five per cent; that the defendant should take all of the said frames that the plaintiffs should make; and the plaintiffs were not to inform any person or firm, and not even to sell to any other person or firm, unless they should charge a profit of not less than fifty per cent. The plaintiffs agreed that they would commence to deliver the said frames not later than within six weeks from the day and date of the contract, and that in case they should not .be able to fill their part of the contract, they should not be subject to a suit for a breach thereof. The complaint alleges that it was further agreed by and between the plaintiffs and the defendant herein that the contract set out in paragraph 2 thereof was to cover and extend over a period of one year from the date thereof, and that the price of the purse frames in said agreement referred to shall be one dollar and thirty-two cents per gross.

There is no allegation that the plaintiffs ever manufactured any of these articles or tendered them to the defendant, the allegation of a breach being that on or about the 1st of November, 1900, the defendant refused to live up to said agreement and comply with the provisions thereof, and since then refused to take from the plaintiffs merchandise by the plaintiffs for the defendant manufactured in pursuance of said agreement, and in all respects continues to refuse to comply with the agreement by her to be performed.

The agreement being under seal, a consideration was presumed, •and while the parties were not precluded from showing that there was actually no consideration, the lack of consideration was an affirmative defense which must be pleaded by the party seeking to avoid the performance of the contract on that ground. Upon a demurrer to the complaint, therefore, a consideration must be presumed. The demurrer below was sustained upon the ground that the contract alleged was void for want of mutuality, as the plaintiffs nowhere agree to manufacture any given number of articles, or to manufacture any at all. In the contract the plaintiffs agree to make a certain purse frame known as style 27 B, and to deliver the same to the defendant for a price not to exceed one dollar and ten cents per gross, with a profit added of twenty-five per cent. That seems to be the only substantial obligation assumed by the plaintiffs, and while a consideration must be presumed upon this demurrer, as the plaintiffs never agreed to manufacture any particular number of these articles, and as there was no express obligation imposed upon the defendant to accept and pay for any specified number of the articles, there can be no implied obligation on the part of the plaintiffs to do anything under the contract. The contract being entirely executory, imposing no obligation upon the plaintiffs, and no obligation of the defendant to take any particular number of these manufactured articles, it would seem that there was no valid contract which imposed an obligation upon either party. A different question would arise if the plaintiffs had manufactured under this contract the articles specified and had tendered them to the defendant, who had refused to accept them, but there is no allegation that the plaintiffs did anything under the contract, that they manufactured any of the articles that it was contemplated the defendant should accept and pay for, or that the contract was in any respects executed by either of the parties. The whole contract was so indefinite and uncertain that it cannot be enforced. (Chicago & G. E. R. R. Co. v. Dane, 43 N. Y. 240.) The contract being under seal, it is doubtful whether the further agreement alleged could modify it. The rule is well settled that a contract or covenant under seal cannot be modified by a parol unexecuted contract. (McKenzie v. Harrison, 120 N. Y. 260.)

It follows that the judgment appealed from should be affirmed, with costs, with leave to plaintiffs to amend on payment of costs in this court and in the court below.

Van Brunt, P. J., Patterson, McLaughlin and Laughlin, JJ., concurred.

Judgment affirmed, with costs, with leave to the plaintiffs to amend on payment of costs in this court and in the court below.  