
    Solomon Becher, Plaintiff, v. National Cloak and Suit Company, Defendant.
    First Department,
    November 6, 1908.
    Contract—pleading — complaint on contract not fixing value of services — effect of partial performance — erroneous nonsuit.
    The complaint in an action for breach of a written contract whereby the defendant was to furnish during specified months a certain number of garments per week to be made up by the plaintiff in a satisfactory manner, the plaintiff to return the work within a week, and payments to be made weekly, without a price being mentioned, should not he dismissed upon. the ground that the written contract was not complete in that the price for the work was not agreed upon, where it is alleged that the plaintiff is ready to and did perform parts of the contract and that the defendant made part performance, for under the circumstances parol evidence is admissible to show what the parties did under the contract and the price paid for the work.
    McLaughlin and Clarke, JJ., dissented.
    Motion by the plaintiff, Solomon Becher, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of thé court at the opening of the trial at the New York Trial Term in November, 1907.
    
      Arthur Furber, for the plaintiff.
    
      John Frankenheimer, for the defendant.
   Patterson, P. J.:

I am of the opinion that the exception to the dismissal of the complaint should be sustained. The cases considered as authority for the course taken by the trial justice (United Press v. N. Y. Press Co., 164 N. Y.406 ; Bluemner v. Garvin, 120 App. Div. 29) are plainly distinguishable from that at bar. Those cases were decided upon the theory that the contracts involved therein contained all that had been agreed ujion at. any time between the parties thereto; that they were lacking in elements necessary to constitute enforcible contracts ; that parol- evidence was inadmissible to add terms not agreed upon between the parties and the construction given to the contracts as-they appeared before the court in each of those cases was obviously correct. Here, however, to my apprehension, an entirely different situation is presented. ■ The contract, as far as it goes, .is definite and .precise in its provisions as to what shall be done by both parties. The defendant was to furnish, during the months of March, April and May, 1905, a certain number of garments per week to be made up by the plaintiff, and during the months of February, .June and July a. certain other number of garments to be made up per week, all to be made in a satisfactory manner, the plaintiff to return the work within a week after its receipt, and payments to be made by the defendant weekly. No price is mentioned. The complaint was dismissed at the beginning, of the trial on the specific ground that it was based upon a contract . set forth in full; that the plaintiff sought to recover profits which he might have made if the defendant had carried it out, and that it was void because of incompleteness, no price having' been agreed upon. On referring to the written contract between these parties, it is obvious that it was not their intention to include in that written contract any statement or agreement as to the price which should be paid to the plaintiff for the work upon • the garments. On the contrary, it is .manifest that that. subject was left open to future agreement between the parties, and the contract' was made conditionally. It says, “ this agreement is made on the condition that yon (the plaintiff) supply us (the defendant) with salable styles at a price which will enable us to sell them at a fair margin of profit.” If nothing further had been done or agreed upon and the plaintiff had sued for a breach of this contract, then the cases cited might control; but here it appears upon the face of the complaint that the plaintiff was ready to perform all and did perform some part of what was required of him under the contract and that the defendant also made pail performance of what was required of it. That averment of the complaint refers to the condition of the written contract and is tantamount to an allegation that the plaintiff did supply styles at a price which would enable the defendant to sell the manufactured garments at a fair margin of profit. As that subject- had been left open for future action of the parties, I think this is a case in which parol evidence is admissible to show what the parties did. It is alleged in the complaint that the defendant did partially perform the contract in the months of February, March, April, May and June, and delivered goods to be manufactured according to the terms of the contract. One of the terms of the.contract was that payments should be made weekly. The contract apparently contemplated that an arrangement should be made as to price when each monthly batch of- garments was delivered; and as the defendant did deliver under the contract some garments to be manufactured, I think it was competent for the plaintiff to show under the allegations of the complaint that the condition upon which the contract depended was performed for each month during which the defendant delivered goods -to the plaintiff and paid for them and that the price paid might be shown in evidence.

The action is not brought only upon allegations of a loss of profits, but for other damage, as specified in the 7th paragraph of the complaint, and what that damage was is in detail set forth in the bill of particulars which forms part of the record.

Exceptions sustained and a new trial ordered, with costs to the plaintiff to abide the event.

Houghton and Scott, JJ., concurred; McLaughlin and Clarke, JJ., dissented on authority of 164 New York, 406, and 120 Appellate Division, 29.

Exceptions sustained and new trial ordered, costs to plaintiff to abide event. Settle order on notice.  