Cohen Sons v. . Lurie Woolen Co. , 232 N.Y. 112 ( 1921 )

The pleadings show a written contract, dated April 10, 1919, by which the plaintiff agrees to buy and the defendant to sell two hundred pieces of tricotine at $3.02½ per yard, delivery to be completed by June 1, 1919. The plaintiff is given the "privilege * * * to confirm more of the above if M. Lurie Woolen Company [the defendant] can get more." The two hundred pieces were delivered and paid for. The plaintiff, exercising its option, demanded as much more of the cloth as defendant could procure. The defendant confirmed the exercise of the option, and delivered sixteen additional pieces with the statement that it could procure no more. In fact, it had procured five hundred pieces, which it withheld. The plaintiff suffered damage for which judgment is demanded.

We find no lack of consideration for the concession of an option. The privilege to order more is coupled with the promise and obligation to accept a stated minimum (1 Williston on Contracts, secs. 44, 140). Schlegel Mfg. Co. v. Cooper's GlueFactory (231 N.Y. 459) is not adverse to our conclusion. There the option stood alone; it was voluntary and revocable. Here the option is supported by the consideration of the sale.

The defendant, then, is bound, unless its promise is to be ignored as meaningless. Rejection on that ground is at best a last resort (Matter of Buechner, 226 N.Y. 440, 443; Ellis v.Miller, 164 N.Y. 434, 438; 1 Williston on Contracts, secs. 37, 137). Indefiniteness must reach the point where construction becomes futile. Uncertainties, thought to be impenetrable, are suggested in respect of subject-matter, time and price. They will be found to be unreal. It is said that we cannot tell whether the buyer, in exercising the option, must make demand for all that the seller can supply, or is free to call for less. We think the implication plain that the buyer is to fix the quantity, subject only to the proviso that quantity shall be limited by ability to supply. It is said the option does not state the time within which election is to be announced. We think a reasonable time is a term implied by law (Pope v. Terre Haute Car Mfg. Co.,107 N.Y. 61, 63). It is said the option does not embody a statement of the price. We think a "privilege to confirm more" imports a privilege to confirm at the price of the initial quantity. This option was drawn by merchants. We are persuaded that merchants reading it would not be doubtful of its meaning. It was meant to accomplish something. We find no such elements of vagueness as to justify the conclusion that in reality it accomplished nothing.

A former judgment, stated in the answer and admitted in the reply, is pleaded as a bar. We think it fails of that effect. The former judgment was on demurrer. The defects in the first pleading have been corrected in the second (Gould v.Evansville C.R.R. Co., 91 U.S. 526, 534; Genet v. D. H.C. Co., 163 N.Y. 173, 178). The first pleading failed to state that election to avail of the option had been announced within a reasonable time. This was an omission that made it subject to demurrer (Pope v. Terre Haute Car Mfg. Co., supra). The present pleading states that when the election was announced, the defendant "ratified and confirmed" it, and delivered sixteen pieces in response to the demand. This was a waiver of the right of rescission for delay, if any there had been.

The order of the Appellate Division should be reversed, and that of the Special Term affirmed, with costs in the Appellate Division and in this court.

HISCOCK, Ch. J., HOGAN, POUND, McLAUGHLIN and ANDREWS, JJ., concur; CRANE, J., dissents.

Ordered accordingly.