I think that the verdict was improperly directed and that the order of the court below, reversing the judgment and granting a new trial, is right and should be affirmed.
The question is, whether the plaintiff is entitled as matter of law upon the conceded facts to recover the amount of the contract for advertising in money. That contract was made on the 31st day of October, 1890. It was not to be paid in *Page 148 money but in property. Whenever the advertiser purchased from the defendant launches to the amount of $5,000 or more, then the defendant agreed to deduct from "our contract price" the sum of $1,155 for the advertising. If the launches to that amount were not purchased, then the defendant was not to pay anything. In case the defendant refused to carry out this agreement in its fair spirit and meaning, it may be that the advertiser would be entitled to recover the price of the work in money. (N.Y. NewsPublishing Co. v. Nat. Steamship Co., 148 N.Y. 40.) Before the plaintiff could recover in this case he was bound to show that there was a contract for the purchase of the launches made between the parties which the defendant refused to perform. The plaintiff was not entitled to have the bill for advertising allowed or deducted from the contract price of launches purchased unless there was in fact such a contract of purchase made in the sense that these terms are understood in the law of contracts. The plaintiff was not entitled to have a verdict directed in his favor unless it appears as matter of law from the record that such a contract was made, and under the circumstances disclosed that was a question of fact for the jury and not a question of law for the court.
This was the ground upon which the learned court below reversed the judgment entered upon the directed verdict and granted a new trial. This conclusion, I think, was clearly correct upon the facts appearing in the record.
It appears that on the 6th day of December, 1897, when the advertising contract was more than seven years old, the plaintiff's brother, who it seems was the party who procured the order for advertising from the defendants, came to the defendant's president to negotiate for the purchase of launches. The president did not know him and of course did not know that he had the contract or intended to use it as payment in the purchase of the launches. He seemed to have been careful to conceal his identity and his purpose from the president and for that purpose assumed a false name. The president told him that the company was hard up and needed money to pay *Page 149 obligations that were pressing and that he would sell two launches, which were pointed out, for $5,000 in cash, which was much less than the regular catalogue price. Hand accepted these terms, and this is the only contract for purchase that has been established.
It is perfectly clear that the defendant agreed to sell at a reduced price for cash and cash only. It is equally clear that the purchaser agreed to pay cash and intended that the defendant should understand that such was his purpose. The jury could have found that the intention of the parties excluded the right to use the old contract for advertising as any part of the purchase price of the launches, since it was expressly stipulated that it was to be a cash sale. Both parties agreed that the seller should receive $5,000 in cash, and not that sum less the old contract for advertising. The seller did not even know that the purchaser had such a contract. But when the purchaser came to pay for the launches, he for the first time revealed to the seller his purpose not to pay in cash but in something else, since he then produced the contract and asked credit for it on the purchase price. The president told him he would allow it, but not on a sale made on a cash basis. He did not repudiate liability to perform the agreement, but insisted that it was intended to apply only on sales at the regular catalogue price, and finally offered to allow the old claim if the purchaser wanted the launches at $5,500. This the purchaser refused and so the proposed contract failed, whereupon the negotiator proceeded to assign the written agreement for the advertising to the plaintiff, who now wants cash for the old claim and must get cash if the verdict was properly directed.
The vital allegation in the plaintiff's complaint is that there was a contract of purchase of the launches, and that the defendant refused to perform it. There can be no recovery by the plaintiff unless that allegation is established as matter of law. This court cannot hold that it was, without giving sanction and complete effect to what may be called a trick or device that would not be entitled to a very eminent place in *Page 150 the code of commercial honor and morality. If it was not actual fraud it was at least a kind of commercial strategy of such very questionable honesty that there is no imperative duty on the court to aid in carrying it to a successful result. There was no contract and no sale since the minds of the parties never met upon any such transaction as the plaintiff now asserts as the basis of the action. The seller stipulated for cash in an emergency. The buyer agreed to pay cash and, therefore, to exclude the old claim, but intending all the time not to pay in money but to offset an old account. The seller expected money and the buyer agreed to pay money, but really intended to pay something else, and thus one of the parties intended and expected one thing while the other party intended quite another and different thing. A contract or engagement can never in law be evolved from a transaction where the minds of the contracting parties are at such cross purposes. There never can be a sale or contract of sale where the consent of the seller is effected or procured by the promise of the buyer to pay money, concealing his intention all the time to offer payment in something else. The plaintiff in order to recover a judgment for money must show that the defendant committed some breach of the agreement. The agreement was that the defendant would pay for the advertising in a commercial article at a price that would include the customary commercial profit. No one, I think, can fail to perceive what the intention of the parties was in entering into the contract. The advertiser doubtless charged a large profit on his bill, and the defendant intended to do the same when setting a price upon the launches in which the bill was to be paid. That this was the mutual understanding and intention of the parties no one can doubt.
The contract upon its face is so peculiar that it may be called a kind of wager agreement, since it was never to have any effect except upon the contingency of a future sale and purchase of launches. Upon that event depended the obligation to pay for certain services, the real value of which does not appear. If that contingency did not happen the agreement *Page 151 had no value whatever. After this otherwise worthless contract had lain dormant for over seven years the owner conceived a plan for converting it into cash. With this end in view he assumed the role of a buyer of launches. He deceived the defendant's president as to his identity and his real purpose, pretending to be ready and willing to pay cash when he was not. He played with loaded dice in order to commit the defendant's officer to the lowest cash price and then unmasked his real purpose. It probably was not so much to buy launches as to create a situation that would enable him, with the aid of the law, to turn the agreement into a money demand. The president, while refusing to be made the victim of the device, offered to perform the contract upon an honest basis and according to the intention of the parties. The prompt assignment of the contract to the plaintiff and the commencement of this action reflects some light on the real purpose of the interview. But, perhaps, the most significant part of the transaction is to be found in the allegation of the plaintiff's complaint that the defendant refused to perform a contract for the purchase and sale of the launches. There is no other ground stated that will enable the plaintiff to covert this peculiar agreement into money. Upon that ground he must stand or fall, and until the disputed fact concerning the making and breach of this contract is found in the plaintiff's favor, either by the jury as a question of fact, or by the court as a question of law, the plaintiff cannot recover. The learned court below simply held that the agreement was not established as matter of law, and this conclusion would seem to be reasonable. If the price of the advertising happened to be $5,000 instead of $1,155, I assume that no reasonable person would say that the defendant's president intended to sell the two launches in order to discharge the old agreement without receiving a dollar in money to pay the defendant's debts, which was the only purpose in view when he gave a cash price to the advertiser. If, under these circumstances, the court could not direct a verdict, the present case is the same in principle. When the plaintiff's assignor *Page 152 agreed to pay a special price in cash he necessarily excluded his right to tender something else in payment, and if there was any engagement at all, or meeting of minds, it was upon that basis and no other. So the question is, could the advertiser refuse to pay as he agreed to and then charge the defendant with a breach of the contract? The result is that there was no contract and no breach of it by the defendant. It is quite certain that the jury could have so found. The defendant did not refuse to perform the contract, but offered to deliver the launches at the catalogue price, which was $500 more than he agreed to sell them on the basis of cash down in order to meet a financial emergency. In the absence of proof that the defendant refused to sell launches in discharge of the contract in the usual and ordinary course of business, and at the customary and established rates, there is no breach of the contract that enables the plaintiff to turn it into a money obligation or demand The plaintiff, himself or his assignor, is the only party who was guilty of a breach of the contract to purchase launches, since he agreed to pay cash, but when the day of delivery arrived refused, and offered payment in an old claim, the existence of which he had carefully concealed from the defendant's president until he had induced him to fix an emergency cash price. This kind of sharp practice cannot be defended on the ground that otherwise the defendant could put any price that it pleased upon the launches. That assertion is not correct, since the fair meaning of the contract is that whenever the advertiser contracts to buy launches at the ordinary or catalogue price to the extent of $5,000, or more, the defendant will then and not until then allow $1,155 on the contract price.
There was a conflict in the evidence as to what actually took place between the parties when they met for the purpose of making the contract for the sale of the launches. I have stated the evidence as it was given by the defendant's president, and as a verdict was directed the defendant was entitled to have the case upon appeal considered in the most favorable light within the limits of any proof in the case. It does not *Page 153 appear to me that this is a case in which courts should be astute to keep the issues from the jury. There is little danger of any injustice from the action of a jury in such a case. The plaintiff alleged that there was a contract on his part to purchase launches. The defendant denied it, and the proof did not conclusively establish the fact in issue. Hence, the court could not properly direct a verdict, but the case was for the jury, and so the court below held.
The judgment and order should be affirmed, with costs.
GRAY, HAIGHT and LANDON, JJ., concur with CULLEN, J.; PARKER, Ch. J., and WERNER, J., concur with O'BRIEN, J.
Ordered accordingly.