
    RAFOLOVITZ v. AMERICAN TOBACCO CO.
    (Supreme Court, General Term, First Department.
    November 17, 1893.)
    1. Contracts—Consideration—Mutuality.
    • A contract whereby a cigarette manufacturer agrees to allow a dealer commissions on all cigarettes piu'chased between specified dates, but not binding the dealer to purchase any definite quantity, is void for want of mutuality, and hence the dealer cannot recover any commiss ons on cigarettes ordered by him, but not furnished by the manufacturer. 23 N. Y. Supp. 274, affirmed.
    2. Same—Pleading Consideration.
    The rule that, on demurrer to a complaint in an action on a contract, the consideration will be implied, and may be shown by extrinsic evidence, does not apply where the complaint undertakes to state the consideration, and such consideration is insufficient to uphold the contract for want of mutuality.
    Appeal from special term, Hew York county.
    Action by Joseph Bafolovitz against the American Tobacco Company for breach of a contract. From a judgment entered on an order sustaining a demurrer to the complaint, (23 H. Y. Supp. 274,) plaintiff appeals.
    Affirmed.
    Argued before VAH BBTJHT, P. J., and FOLLETT and PAB-KEB, JJ.
    Charles F. Holm, for appellant.
    Oudin & Oakley, for respondent.
   PARKER, J.

This case was well disposed of at the special term, and the argument supporting the disposition made was so fully presented as to render further consideration of the question discussed unnecessary. The appellant now makes a point which does not seem to have been addressed to the special term, and, in order to meet it, it will be necessary to state briefly the conclusion reached by that court. The pleader attempted to allege two distinct causes of action, founded on two separate contracts; but, while there were two contracts, they were in the same form, and but one need be quoted. As alleged, it reads:

“On or about the 10th day of April, 1892, Joseph Rafolovitz and Son entered into an agreement or contract whereby and wherein the defendant promised and agreed, in consideration that said Joseph Rafolovitz and Son would purchase and sell a certain cigarette manufactured by defendant, that he, the defendant, would allow and pay them as a compensation or commission for said purchase of cigarettes twenty cents on every thousand oí' said cigarettes manufactured by defendant and purchased by said Joseph Rafolovitz and Son between the 10th day of April and the 1st day of October, 1892.”

It seems that Joseph Rafolovitz & Son did thereafter purchase nearly 200,000 cigarettes, upon which purchase the defendant paid the promised commissions. Then it refused to sell to plaintiff any more cigarettes; hence this action.

The court held that there was no mutuality of contract, and therefore not enforceable; that it would have been otherwise had the plaintiff bound himself to have purchased a given quantity of cigarettes; that under the agreement as alleged it was optional with the plaintiff to purchase cigarettes or not. If, after making it, he had refused to take any, or, after taking a few thousand, had declined to purchase others, the defendant could not have compelled him either to take cigarettes or respond in damages for not doing so; and as he made no promise, there was no basis for a consideration for the promise of the other party to the alleged agreement. In support of such position the court cited Railway Co. v. Done, 43 N. Y. 240, and Hurd v. Gill, 45 N. Y. 341. Appellant insists that Wells v. Alexandre, 130 N. Y. 642, 29 N. E. Rep. 142, upholds the agreement which he alleges, but we do not so understand it. There the plaintiff proposed to furnish defendant’s steamers, naming them, with coal, at a price named, for the period of one year. The defendant accepted the offer, and thereafter plaintiff furnished to the defendants such quantity of coal as was required for the use of the steamships, until the defendants sold them. It was held that the proposal and acceptance, both of which were in writing, constituted a valid contract; there being entire mutuality, because one promised to take and pay for all that the other agreed to sell and deliver. The principal contention of the defendant in that case was that the contract was one for successive deliveries of coal, to be made only when the defendant should give the plaintiff notice that a delivery was required; and, as notice had not been given, the defendants were not in default. It was held that while, at the date of the agreement, the quantity was indefinite, it was nevertheless determinable by the terms of the contract, and therefore within the maxim “certum est qupd, certum reddi potest.” The necessity for notice was doubted, and it was asserted that, if notice was required, a covenant on the part of the defendant to give it would be inferred, for otherwise the contract would be unreasonable, and place one of the parties entirely .at the mercy of the other. It will be seen, therefore, that the questions presented for decision in the two cases are entirely different. The appellant calls our attention to a number of cases in which courts, having in mind the peculiar facts of the cases under consideration, have said" that upon a demurrer the consideration will be implied; and another line of cases holding that a consideration may be shown by extrinsic evidence. But those cases are not applicable here, because the complaint undertakes^ to state the consideration. It avers that the consideration moving" to defendant was that Joseph Rafolovitz & Son would purchase and sell a certain cigarette manufactured by defendant. But as stated, there was no promise on the part of Joseph Rafolovitz & Son to purchase cigarettes, which was enforceable by defendant, and therefore it did not furnish a consideration for the defendant’s promise. Undoubtedly, if there had been some other consideration for defendant’s promise, moving from Joseph Rafolovitz & Son, defendant’s agreement could have been enforced, notwithstanding the absence of an obligation on the part of the plaintiff to purchase cigarettes. So, if the complaint had alleged that the agreement pleaded was founded upon a good and sufficient consideration, some of the cases to which the appellant calls our attention would be applicable. Under such an allegation the plaintiff upon trial would be permitted to show by extrinsic evidence the consideration for defendant’s promise. Hurd v. Gill, 45 N. Y. 341. This was not done, presumably because it was not the fact. It must be assumed that the complaint correctly states the facts, and that presumption attaches to its statement as to what constituted the consideration as well as its allegations in respect to the other features of the agreement. In. disposing of the demurrer, therefore, it could not be inferred that some other consideration than that alleged in the complaint existed in fact, or could be proved on the trial. The sufficiency of the alleged consideration was adequately discussed at special term, and with the conclusion reached we agree. The judgment should be affirmed, with costs, but with leave to the plaintiff, on payment of the costs so far awarded against him, to amend his complaint within 20 days after service .of notice of the entry of the order of affirmance. All concur.  