
    Meyer Lambert, Appellant, v. Isaac M. Hays and Others, Individually and as Copartners, Doing Business under the Firm Name and Style of Hays, Levi & Company, Respondents.
    First Department,
    February 4, 1910.
    Sale — contract not fixing price.
    There can be no recovery for the breach of a contract whereby the plaintiff agreed to purchase all goods of a certain character from the defendant, the defendant to sell only to the plaintiff, if the agreement does not state the price at which the goods were to be sold and furnishes no rule by which the price can be ascertained.
    Appeal by the plaintiff, Meyer Lambert, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the: 9th day of June, 1909, upon the decision of the court, rendered after ia trial at the Hew'York Special Terra, sustaining the defendants’ demurrer to the complaint.
    
      
      Emil Goldmark,,.for the appellant.
    
      Arthur Garfield Hays, for the respondents.
   Scott, J.:

The plaintiff appeals from an interlocutory judgment sustaining a demurrer to the complaint.

The action is brought to recover damages for defendants’ refusal to comply with a contract to sell clothes to plaintiff. This contract is in writing and was made on December 24,1904. It is set out at length in the complaint. Plaintiff, who already had a clothing store, agreed that as soon as possible he would procure and open another for the purpose of selling such goods as are usually sold in a clothing store. He also agreed that for a period of five years ending November 1, 1909, “ he will purchase all the clothing he buys, which is to be sold in those or any other stores, he may have in the Borough of Manhattan, Greater City of New York, from parties of the second part [the defendants herein], excepting an amount not in excess of five thousand ($5,000) dollars per annum without the approval of the parties of the second part.”

The defendants, on their part, agreed as follows: “ That they will not sell any of the goods they are now manufacturing or may manufacture during the life of this contract, under the name of Atterbury System to any other parties but the said party of the first part, to- be sold at retail or wholesale in the borough of Manhattan, Greater City of New York, and that they give said party of the first part the exclusive right to sell at retail in the borough of Manhattan, * * * any of the goods manufactured by them under, the name of the Atterbury System.”

The contract contains certain provisions as to advertising, which are not material here. The plaintiff complains that the contract was fully performed by him until November 1, 1908, when defendants refused to sell him any more goods or otherwise to fulfill the contract on their part. It thus appears that the contract has been only partially performed and to this extent only is to be treated as an executed contract. So far as concerns the breach for which the plaintiff claims damages the contract remains an executory one. The contract itself specifies no price at which defendants are to sell the goods which are its subject, and furnishes no rule or criterion by which such price can be ascertained. This omission. is fatal to the enforcement of the contract, and to the recovery of damages for its breach. The case is not to be distinguished in principle from United Press v. New York Press Co. (164 N. Y. 406). The subject of the contract in that case was the furnishing of news by plaintiff to., defendant, The contract was plain and explicit in every particular save one, which was the fixing of the price to be paid, which it was. provided should be “ fair and equitable to both of the parties,” “ not * * * more than any other daily morning newspaper in the city of Hew York shall be required to pay to the first party for the same, news report.” The parties went on under the contract for two years, the plaintiff furnishing the news reports, and the defendant paying a unifqrm sum per wéek for the service. Then the defendant refused to go further, and the plaintiff sued for damages. The Court of Appeals said If this were a case where the contract of the parties was merely ambiguous in its terms, it might be permissible to explain them by evidence of their acts, and thus to show a practical construetibn; but the difficulty with this instrument lies deeper. It lacked support in one of its; essential elements; in the- absence of a statement of the price to be paid. That was. a defect which was radical in its. nature, and which was beyond the reach of oral evidence to supply ;e for, if the. intention of the parties in so essential a particular cannot be ascertained from the instrument, neither the court nor the jury will be allowed to make an agreement for them upon the subject. It is elementary in the law that-for the validity of a contract the promise or' the agreement of the parties to it must be certain and explicit, and that their full intention may be ascertained to a reasonable degree of certainty. Their agreement must be neither vague nor indefinite, arid, if thus defective, parol proof cannot be resorted to.” That case stands to-day as the leading case in this State upon the subject, and has not been overruled or departed, from. Becher v. Nat. Cloak & Suit Co. (128 App. Div. 423), which was decided by a divided court, has gone" further perhaps in an opposite direction than any other case. It certainly, lay close to the border, but the contract in question there contained within its own lines a criterion by which the price to be paid could be ascertained with, a reasonable degree of certainty. The present contract contains neither an agreed price nor any criterion by which it can be ascertained. We are referred to a number of cases brought to recover damages for the breach of executed contracts,-wherein to prevent injustice the law has implied an agreement -to pay a reasonable price. These cases have no application to an action for the breach of an executory contract. Upon that subject it was said in the case already quoted from: “I entertain' no doubt that, where work lias been done or articles have been furnished, a recovery may be based upon quantum menoit or quantum valebant / but whére a contract is of an executory character and requires performance over a future pei'iod of time as here, and it is silent as to the price which is to be paid to the plaintiff during its term, I do not think that it .possesses binding force.”

The defendants suggest other defects in the contract which, as it is claimed, are equally fatal. These it is unnecessary to consider as one fatal defect is quite sufficient to sustain the judgment appealed from.

The judgment should be affirmed, with costs, with leave to plaintiff to amend within twenty days upon payment of costs in this' court and in the court below.

Ingraham, P. J., McLaughlin, Clarke and Dowling, JJ., concurred.

Judgment affirmed, with costs, with leave to plaintiff to amend on payment of costs.  