
    George F. Nixon, Resp’t, v. Aquilino Zuricalday et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed January 15, 1895.)
    
    COBTBACT—PEB SOBAL.
    In order that a contract shall bear the impress of being a personal contract, or one which involves personal considerations, something must appear from the contract itself, or it must inevitably suggest that a personal confidence or trust was reposed in the person with whom it was made.
    Appeal from, judgment of the general term of the superior court of the city of New York, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court, and also ■, affirmed an order denying a motion for a new trial.
    
      Emmet B. Olcott, for app’lts; C. K Bovee, Jr., for resp’t.
    
      
      Reversing, 53 St. Rep. 938.
    
   Gray, J.

The theory upon which the learned trial judge directed the verdict for the defendants, as we learn from his opinion, was that the plaintiff’s agreement to make, an allowance to the defendants upon their purchases at the sale, “ was founded on a confidence reposed in the defendants, and created a personal trust, which could be discharged only by the personal acts of the defendants, or by the authorized and announced use of their names at the auction sale.” This theory of the relation of the parties he rested upon the familiar rule in equity, that when the agreement, is personal, depending upon the learning, skill or other characteristic of the contracting party, he alone can enforce performance.

We cannot, however, agree with the learned judge in his application of this rule to the case at bar. He assumes a state of facts which the evidence fails to disclose. If we take the case as made by the plaintiff, it proved nothing concerning the agreement alleged. It established, in fact, a sale through the auctioneer to the defendants; although the evidence of the auctioneer showed that some of the lots were bought for defendants by a person named Elias. For the defendants, the agreement was shown, by the testimony of one of them, to have consisted merely in the plaintiff’s proposition to him that if he would purchase up to 4,000, or to 8,000 boxes at the sale, he would allow him one-eighth of a cent per pound on the former amount, or one-fourth of a cent on the latter amount. The agreement was in paroi and its exact nature was issuable under the pleadings; but all we know of it is from the defendants’ testimony. Such an agreement does not bear the impress of an engagement, so personal in its nature as to have devolved the duty upon the defendants of actually doing the bidding at the sale. It is possible that the plaintiff may have had the notion, when making his proposition, that the personal attendance of the defendants and their bidding would stimulate other bidders, or otherwise better the market. But if such was the underlying consideration in his mind, there should have been some evidence of it and it should not have been left to assumption alone. We might indulge in more than the one assumption, in the face of the meagre evidence concerning the parties and their plans. How are we to assume that the fact of the defendants’ bidding in person at the sale would be any more potent a factor in the market, than if they procured the aid of another person, interested with them in their venture, as Elias was, to bid for them during the sale ? The record is silent. We do not know from the evidence that the defendants occupied any such position in the peculiar market, as to give them any prestige. As a matter of fact, the conditions of the plaintiff’s proposition were met by the actual purchase of over 8,000 boxes of dates by the defendants at the auction sale. Elias was not a broker in the transaction. He was, and he had been for some time, interested with defendants on joint account in their ventures. There was nothing in the transaction with the plaintiff, which debarred Elias from continuing to participate with-the defendants in the proposed purchase, as he had done in the past. It was easy for the plaintiff to have limited, and to have precisely defined his engagement towards the defendants, with respect to their purchases of his goods. But he did not do so, and the fact is that the defendants did purchase over 8,000 boxes ; which entitled them to the allowance agreed upon by the plaintiff. There was no question of any assignment of the contract, or of bringing in a third party. In order that a contract shall bear the impress of being a personal contract, or one which involves personal considerations, something must appear from it, or it must inevitably suggest that a personal confidence, or trust, was reposed in the person contracted with. Such was the case in Stevens v. Benning, 1 Kay & J. 168. In that case Yice Chancellor Wood suggested a case which aptly shows how the inference of a personal trust can be made from the transaction itself. He says: “Take, for instance, the case of a merchant in the West Indies consigning goods to a person in London, for the purpose of having them sold there, such person alone would have a right to sell them.” Ho such element can be presumed to enter into the transaction in question. There was no such duty, necessarily or inferentially, devolved upon the defendants, as to permit the court to presume that any personal confidence was involved, or that the exercise of some personal skill on their part was expected. In view of the manner of a sale at auction, and what would ordinarily be done, that would be an irrational presumption. In the case of Spalding v. Rosa, 71 N. Y. 40, cited by the learned trial judge, the defendants’ contract to furnish the “Waehtel Opera Troupe ” could onty be fully performed by the appearance of the great tenor singer himself, who gave his name to the company and whose presence was of the essence of the contract, as of the success of a performance. So in Wolfe v. Howes, 20 N. Y. 197, the contract with the mechanic contemplated his personal services; because, not only it was “ evident, both from the nature of the business and the amount of compensation agreed to be paid him; ” but, as Judge Allen adds: “It is also manifest from the evidence on both sides. The business of pot making required skill and experiance. * * * The execution of the work required his constant and personal supervision and labor.”

The judgment of the general term should be reversed, and a new trial ordered; with costs to abide the event.

All concur, except Haight, J., not sitting.

Judgment reversed.  