
    Simon S. Hill, Respondent, v. Lowell M. Palmer, Appellant.
    Second Department,
    March 31, 1910.
    Contract — agreement to furnish coal so long as promisor continued business — facts not showing breach.
    There can be no recovery for the breach of a contract which required the defendant to furnish to the plaintiff all coal used by him in his business, with a proviso that.the agreement should terminate if the defendant “ or his assigns” should give up the coal business, where the evidence shows that the defendant discontinued business, because the persons owning the lands on which it was conducted, and with whom the defendant shared the profits, dissolved the •partnership and continued the business on their own account, and not as an assignee of the defendant.
    Appeal by the defendant, Lowell M. Palmer, from an order of the Supreme Court, made at the Kings County Trial Term and. entered in the office of the clerk of the county of Kings on the 14th day of May, 1909, setting aside the verdict of a jury in favor of the defendant and granting a new trial.
    
      Edward M. Shepard [A. B. Siegel, with-him on the brief], for the appellant.
    
      Edward A. Alexander, for the respondent.
   Pee C ubi am :

The complaint charges breach of contract by the defendant, and in another cause of action fraudulent representations by defendant inducing the plaintiff to make the same-. The plaintiff, acquiescing in the ruling of the court, elected to stand on the br'each. The court, in a charge that left the plaintiff without'just criticism, submittéd the question of the breach to the jury, and a verdict resulted for the defendant, which the court set aside upon the ground that it was against the weight of the evidence. The court submitted in addition to the question of damages the interpretation of the contract upon the theory that it was doubtful, and that evidence of “ what was said by the parties at the time or before its execution about it may be resorted to-, to help you' to the true understanding of the parties.” The plaintiff did not move for a direction of a verdict, nor object to the submission to the jury, while the defendant moved for nonsuit and- excepted to the submission to the jury, in any form, of the interpretation of the contract. Looking at the evidence even most favorably to the plaintiff, the verdict should not have been set aside. Edward Hill, plaintiff’s brother, was in the business of taking orders for the sale of coal, which he in turn filled by orders on the defendant, who was conducting in his own name, and apparently irí his sole right, a coal'pocket and coal business at the foot of North Ninth street, Brooklyn. On February 8, 1904, Hill was indebted to the defendant in the sum of $27,531.06, and inconsiderably to others, and luid for the payment thereof his horses, trucks, etc., on which defendant had a mortgage, and some inconsiderable amount in bills receivable, all valued not beyond $5,000. Hill’s brother Simon, the plaintiff, undertook to help him, and to that end, on the above date, entered into a contract with the defendant wherein he bound himself to pay his brother’s indebtedness, less $5,000 canceled, and “for a period of ten years and six months from date” to purchase from the defendant all the coal used by him in his business, of named description, “ at a price of forty cents per gross ton above the cost, f. o. b. * * * accord ing to the monthly circulars of the several coal companies,” and plaintiff agreed to pay therefor. In consideration of such promises the defendant agreed to reduce the indebtedness to $22,531.06, extend payment of a part thereof, and “ to furnish to the party of the first part all the coal used by him in his business as aforesaid, of the sizes and at the prices above named, provided, however, that he shall not be prevented from furnishing or delivering the same by strikes or other occurrences beyond his control. It is understood and agreed that if the party of the second part, or his assigns, shall cease' to continue in the* coal business at the foot of North Ninth Street, in the Borough-of Brooklyn, New York City, during the term of this agreement, that this agreement shall thereupon terminate and come to an end.” The first draft of the contract did not contain the words “ or his assigns,” and plaintiff claims with -probable, truth that they were inserted at his brother’s suggestion. The contract was fulfilled by both parties to June 1, 1906, when the defendant retired from the business' in question, and refused to recognize further obligation to furnish plaintiff coal. The plaintiff contends that the defendant did have “ assigns ” of the business; that such “ assigns” did not. cease to continue in the coal business ” -at the designated place, and that defendant was bound to fulfill, or to provide fulfillment of his contract. For many years defendant had agreements with Havemeyer &. Elder, who owned the docks and other property, which they contributed to the business, and the . profits were apportioned. When this relation expired by limitation, although Palmer wished otherwise, Havemeyer & Elder refused renewal or continuance of such relation, or any relation. There is no' evidence whatever that defendant continued the business, or that he was, directly or indirectly, interested therein, or that he assigned the business or in any manner promoted it in the hands of another, or that Havemeyer & Elder, or any other person or company, carried it on under any agreement, understanding or right, had with or received from ‘the defendant. All matters relating to the coal business were ended by Havemeyer & Elder taking the books, accounts, coal, “ tow boats and things like that,” which accrued or were bought under their agreement with defendant, and paying defendant á sum of money for his share of the profits earned to June 1,1906. The personal property on hand was valued in order to estimate the profits. That was all. And part of my share of the profits earned to the conclusion of. the contract was paid me, not. all of it. There is some of it in controversy. The payment that was made me was my share of the profits, .and nothing else.” The agreement that connected Havemeyer & Elder and Palmer in business was broader than the coal business at the foot of North Ninth street. ’ The agreement of 1890 _ was to the effect that Havemeyer & Elder should provide “ the real estate, floats, tugs, docks, and other appliances and the money required,” and for a. return to them of the same, with interest as provided upon the termination of the- agreement. In Jnne, 1891, this agreement was extended to June .1, 1906, and it was stipulated that Mrs. Palmer should provide for' the use of the business certain property at Greenpoint, but that had no connection with the coal business. The fact is that Havemeyer & Elder had agreements with Palmer whereby, among other things, he was enabled to carry on the coal business at the foot of North Ninth street, which was terminated by the fixed time limit. Havemeyer & Elder would not continue, although Palmer desired it; the former took back their own and the business was liquidated, subject to some-differences. There is no ground for the contention that an assignment of the business was made or is implied. The learned counsel for the appellant has made the best use of plaintiff’s opportunity, but the contract speaks plainly and the facts clearly favor the defendant.

The order should be reversed, with, costs, and the verdict restored.

Woodward, Jerks, Thomas, Eioh and Carr, JJ., concurred.

Order reversed, with costs, and verdict reinstated, with costs.  