
    Commercial Wood and Cement Company, Appellant, v. Northampton Portland Cement Company, Respondent.
    First Department,
    November 5, 1906.
    Contract — failure of consideration — unilateral promise imposing no obligation.
    Although mutual promises are a good consideration for a contract, the promises must impose some legal obligation oh the person's making them or the consideration fails.
    A contract which appoints'a sole selling agent for five years and entitles the agent to six per cent on all goods sold by the agent or others, but does not bind the agent to sell, or to attempt to sell, any goods for the principal or to transact any business for the principal Whatever, is void for lack. of consideration. ,
    (Per Houghton, J.): A by-law of a corporation respecting the powers of 'an executive committee of a board of directors^ of a corporation must bo construed with reference to the statute defining their powers and term of office.
    A contract made by the executive committee of the board of directors of a corporation which appoints a sole selling agent for five years and entities the agent to six per cent on all goods sold by the agent Or others, but does not bind the agent tó sell, Or to attempt tó sell, any goods for the principal or to" transact any business for the principal -whatever, even if a covenant to use best endeavors to sell may be read into if, is unreasonable, and under the circumstances disclosed is not binding on the corporation.
    Appeal by the plaintiff, the 'Commercial Wood and Cement Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 30th day of December,.1905, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on. the 22d day of December, 1905, denying the plaintiff’s motion for a new trial made upon the minutes.
    L. Laflin Kellogg, for the appellant.
    
      Harmon S. Graves, for the respondent.
   Houghton, J.:

The defendant is a corporation organized under the laws óf the State of Delaware, and" engaged in the business of the manufacture and sale of cement in the State of Pennsylvania, having an office in the city of New York. There were eleven directors, five of whom had been appointed an executive committee. The by-laws under which this appointment was made reads as follows: “ There shall be an executive committee consisting of five members, who shall be chosen by the directors and who shall meet whenever they see fit, or subject to the call of the chairman, or upon the written request of two of its members. A majority of the committee shall constitute a quorum. They shall have authority to exercise any powers of the board when the board is not in session, and they shall have the power to order the seal to be affixed in cases where the same may be required, subject at all times to the orders of the directors.” Amongst the members of the executive committee were -the president and general manager, neither of whom in such capacities, however, is claimed to have had the power to make the contract involved herein.

The plaintiff is also a Delaware corporation, engaged in the business of marketing and selling cement,-likewise having an office in the city of New York, a very large majority of the stock of which was owned by its president, Ralph Peverly. It had a board of three directors, two of whom were its president and secretary.

Dissensions had arisen amongst the stockholders and directors of the defendant, particularly with respect to changing the sales agent of the company, which culminated in the calling on the 25th day of June,-1901, of a meeting of the stockholders' at Dover, Del., for the twenty-eighth day of June instant, for the purpose of amending the by-laws so as to increase the number of directors, and to give the board of directors power to remove any member of the executive committee when it was thought to be for the best interests of the corporation.

The president of the plaintiff was on friendly terms with the president and the general manager of the defendant, and they had been negotiating with him for some time prior to June twenty-fifth respecting a contract with the plaintiff to act as sales agent for the defendant, and by their direction the president of the plaintiff had prepared the contract in controversy.

There had been a meeting of four members of the executive committee on the twenty-fifth of June, two of whom opposed this ■ plan,, but no mention was made of the proposed" contract.. • A meet- ' ing of the full board of directors had been called for June twenty-seventh at two p. m. On the twenty sixth the chairman of the executive committee of defendant informed tliQ president of plaintiff that the contract should be signed, and. Was informed that the plaintiff’s secretary Could be- gotten. from Philadelphia, where he then was, in the morning. Thereupon a call Was issued for a meeting of the executive committee of the defendant on the .twenty-., seventh oí Juné at ten ■ o’clock a. m.¿ at which meeting, three members being present, a resolution was passed directing the execution of the contract in controversy, and it was thereupon signed by both parties, with’the seals of the two corporations attached.

In substance, the contract provides that the plaintiff should. be ■the sole selling agent of the entire output of cement of. the defendant for the period , of five years, or in default of notice of termination for -five years more, and receive a commission of-six per cent on all sales, whether made by it or others, payable "on the . fifteenth day of the month following shipments; the defendant to fix’ the terms of sale and.’a minimum price, which should not be changed except on thirty days’ notice, and which minimum should be binding on all proposals for the furnishing of cement made by the plaintiff prior to such notice, defendant to pay for all advertisements,. of which, however, plaintiff was to have charge. The plaintiff did not agree, except by such implication as the law might raise,, to make any sales or endeavor to' make, any, and specifically bound itself to do nothing except to- keep a set of books in. the name, of defendant, showing sales and credits, and to make remittance of receipts, and to maintain a suitable office, separately or in connection with "its own- general offices, and to pay any clerks, bookkeepers, salesmen or stenographers which 'it might employ in such office, and all postage and express charges on advertising matter which it might distribute. Certain other details of conduct are specified, which are not material; and a further clause provided that if at any time during the continuance of the contract a change in the management of the defendant corporation should take place, the - plaintiff’s rights under the contract should be preserved. -

A copy of this contract was transmitted to the board, of directors, which met within two hours after -it was. executed1, and they passed a resolution notifying the plaintiff to take no action and incur no expense under it until it should be further considered and ratified or rejected, which resolution was at once transmitted by telephone and messenger to plaintiff. The president and the general manager, who had been instrumental in'the execution of the contract, wei;e summarily removed from office and from the executive committee, and, on the seventeenth of September following, the board of directors of defendant formally rejected and repudiated the contract and so notified the plaintiff.1

The plaintiff, in pursuance of the contract, wrote some letters and sent some orders, which' were rejected before the contract was ' formally repudiatéd, and in May, 1902, this action was brought for damages, and the plaintiff proved that its commissions of six percent on the amount of defendant’s sales up to- October, 1905, amounted to the sum of $90,590.10, from which it conceded should be deducted expenditures which would, have b ;en incurred had it carried out the contract of $2,700 per year.

At the close of all the evidence the court dismissed the plaintiff’s complaint, and, we think, properly. .

Notwithstanding the. hurried and surreptitious manner in which the contract was executed, if its validity depended upon bad faith or fraud that question would be for the jury to determine and not for the court. We think, however, the contract was unreasonable and one not within the power of the executive committee to make, because it was not within the contemplation of the by-law creating such committee.. It certainly was an extraordinary contract for an . executive committee to make during the last hours of its existence. It was one involving serious consideration and careful discretion on , the part of the managers of the corporation and one which as a business proposition, if made at all, should have been made by the board of directors themselves.

The laws of the State of Delaware, which were proven, provide that the business of every corporation shall be managed by a board of directors whose term of office shall be one year, unless they shall be divided into classes," which was not done in the case of defendant. The term of office of the board of directors, therefore, was ' for one year only. The term of the contract extended far beyond the life of the executive-committee as well as that of,the board of directors which created it.

. The by-law giving authority to the executive committee to exercise any powers of the board of directors when not in session, must be construed to relate to such ordinary and administrative business of the corporation as from time- to time might arise during, the term of office of the directors themselves. It cannot be presumed that the board intended to delegate to an executive committee the making of a contract which would tie the hands not only of the present but future directors. In construing the action of the board of directors in adopting a by-law conferring powers upon executive officers or committees, it must be assumed that they had in mind the provisions of the statute fixing their own terms of office, and that, at the expiration of that period, other persons might be chosen upon whom would rest the responsibility of the conduct and management of the business of the corporation, and that they had no right- to interfere with the powers of future boards by imposing upon them unreasonable contracts, and such provision of the statute may propeily be taken into consideration by the court in determining whether the contract is reasonable or unreasonable. (Carney v. N. Y. Life Ins. Co., 162 N. Y. 453 ; Caldwell v. Mutual Reserve Fund Life Assn., 53 App. Div. 245.)

The executive committee had only such powers as were conferred upon it. They. were not officers of the company having inherent and executive authority to contract concerning and conduct and manage the corporate business. The plaintiff was. not dealing with the president and general manager as such, and was not lured into the contract by any apparent authority which they as such officers possessed. Its president was informed that the executive committee must meet and that it would meet and take action upon the contract, after which it would be executed. The dealing was, there-, fore, with the executive committee, an artificial creation of the corporation, and plaintiff was bound T5y such authority as it had. (Alexander v. Cauldwell, 83 N. Y. 480.) ' ...

In our opinion it did not have authority to make the contract which it assumed to make and the defendant was not bound by it. The unreasonableness of the contract is shown by the plaintiffs own proof, which, discloses an income to it of more than $20,000 per' annum for an expenditure of $2,700. There may be doubt that even the board of directors had the right to enter into any such contract, but in our view of the case it is unnecessary to determine that question.

It is urged that the coni,-act lacks mutuality in that the plaintiff did not covenant to make any sales or to use its best endeavors so to do. Whether a covenant will be read into a contract where there is no express agreement to perform depends upon the intent of the parties gathered from the instrument and the surrounding circumstances. (Booth v. Cleveland Mill Co., 74 N. Y. 15; Wells v. Alexandre, 130 id. 642; Jacquin v. Boutard, 89 Hun,. 437; Horton v. Hall & Clark Mfg. Co., 94 App. Div. 404.) The plaintiff held agencies for other cement companies and maintained an office for the purpose of selling'cement. The contract specifies certain thing's which it shall do and may do, but nowhere provides that it shall make any effort to sell the cement of the defendant.

We are inclined to the opinion that a covenant to use best endeavors to sell may be read into the contract, but our view of the contract itself and lack of authority on the part of the executive committee to enter into it renders a determination of that question unnecessary.

Our conclusion is that the judgment is right and should be affirmed.

Ingraham, J. (concurring):

I concur in the conclusion that this judgment should be affirmed. The contract which is here sued on was for a term of five, years from the day of its date (June 27, 1901). It purports to make the plaintiff the defendant’s sole selling agent for its entire output of cement, manufactured at Stockertown, Penn., or at any other place, and obligated the defendant to pay to the plaintiff a commission of six per cent on all sales of cement, whether made by the party of the second part (plaintiff) or others. Each clause of this contract contains obligations of the defendant, but the contract can be > searched in vain for any obligation imposed upon the plaintiff, except that the plaintiff is to keep a set of books and to maintain at its expense in. the city of Hew York a suitable office'to conduct the business (which it nowhere agrees to conduct), with' the dignity necessary to properly represent the defendant, with a proviso that such office may or may not be a part of the party of the second part’s general office for the'sale of cement,,and to pay all postage or other charges for the delivery of advertising matter which it (party of the first part) may distribute. ‘There was no acceptance by tin party of the second part of- the appointment as sole selling agent, although that could possibly be assumed from .the execution of its contract. There was no obligation of the plaintiff to sell or to' endeavor to sell a barrel of the defendant’s cement; no obligation to expend a dollar in the prosecution of the business of the defendant. If it sold none of the defendant’s cement, it had no use for boobs or clerks and would not incur. any expense therefor; and if it distributed no advertising matter, it would be under no obligation to pay any postage whatever. The plaintiff could comply with every provision of the contract without being required to spend a dollar, and the defendant would have to pay to the plaintiff a commission of six per cent upon all' the cement that it manufactured and sold. There could never be any breach of this contract, by the plaintiff, because under it the plaintiff did not obligate itself to do anything; and yet for five years it could be entitled to demand from the defendant a commission of six per cent upon all cement that the defendant manufactured and sold.’ The contract contains no statement of the consideration, and the "only consideration that could sustain it is mutual promises of the parties thereto; but in order that there should be such a- consideration there must be promises or obliga- - tions assumed by both of the contracting parties. The only possible consideration, therefore, for this contract would be an assumption of mutual obligations by both the contracting parties, and, as I read this contract, there is no obligation assumed-by the plaintiff to sell any cement, to make any efforts to sell any cement, or to transact any business for.the defendant, no obligation for a breach of which a cause of action would arise in favor of the defendant against the plaintiff. It is said in 9 Cyclopedia of Law and Procedure (at p. "325): A promise is a good consideration for a promise, provided always that it imposes some legal liability on the. person making it. If it imposes none, then it cannot be a consideration.” And at page 327: “ There are many cases in which, although the offer is definite enough, yet the acceptor by merely accepting has really himself promised nothing in return, has not made himself liable for anything, so that,, although one is' bound the other is not, and the engagement lacks what is called mutuality. In such a case-there is not an enforcible agreement.” In Chicago & G. E. R. Co. v. Dane (43 N. Y. 240), where the defendants wrote a letter- to the plaintiff, saying they agreed to receive “in this port (New York), either from yard or vessel, and transport to Chicago, by canal and rail or the lakes, for and on account of the Chicago and Great Eastern Railway Company, not exceeding six thousand tons gross,” the letter was answered as follows: “ In behalf of this company I assent to your agreement, and will be bound by its terms,” it was held that there was no contract, the court saying: “ But there was no consideration received by the defendants for giving any such option to the plaintiff. There being no consideration for the'-promise of the defendants, except this acceptance by the plaintiff, and that not. binding it to furnish any iron for transportation, unless it chose, it follows that there was no consideration for any promise of the defendants and that the breach of such promise furnishes no foundation for an action.” Rafolovitz v. American Tobacco Co. (73 Hun, .87) is another illustration of the same principle. In that case the defendant promised and “agreed, in consideration that the . plaintiff would purchase and sell a certain cigarette manufactured by the defendant, that the defendant would allow and pay them as compensation or commission for said purchase twenty cents on every thousand'of cigarettes manufactured by the defendant and purchased by the plaintiff. It was held that as there was no promise on the part of the plaintiff to purchase cigarettes which was enforcible by the defendant, it did not furnish a consideration for the defendant’s promise.

I think, therefore, as there was an entire lack of mutuality, and this contract imposed no obligation upon the plaintiff, there was no consideration to support the promise of the defendant, and, therefore, there was ho cause of action.

O’Brien, P. J., Clarke and Scott, JJ., concurred.

Judgment and order affirmed, with costs, 
      
       See Gen. Corp. Law (Laws of Del. of 1901, chap. 167), § 9. This statute has been since l-e-enacted. (See Gen. Corp. Law [Laws of. Del. of 1903, chap. 394], § 9).— [Rep.
     