If the majority opinion be right in saying that "We think that the fair construction of the agreement is that the brewing company was bound to collect the two dollars per barrel upon all beer which it delivered at that saloon and apply the same for the benefit of the plaintiff," then there is no gainsaying the conclusion reached therein, for more than six hundred barrels of beer were delivered at the saloon. But as the agreement does not say so in express terms, or otherwise, but instead expressly limits its operation to sales of beer to John H. Mallon, I am unable to see how the court can, by so-called construction, read into the agreement a provision that the brewing company bound itself to collect two dollars per barrel upon all beer which might be delivered at that saloon, no matter who should be the occupant and proprietor of it. It was bound to collect two dollars for plaintiff's account for every barrel of beer sold and delivered to Mallon, and the findings are to the effect that the entire amount of beer delivered to him down to and including the last day of April, 1898, when he transferred the business *Page 313 and property to his wife, was four hundred and fourteen and seven-eighths barrels.
The findings are that thereafter she continued to run the business, for the eleventh finding (by which we are bound) is, "That since the 1st day of May, 1898, until the time of this trial, the said hotel business referred to in the tripartite agreement has been continued on the same premises by Cleopatra Mallon, the wife of the said John H. Mallon, under a lease of said premises in her own name, made to her about said last mentioned date, said business having been conducted for said Cleopatra Mallon, by her said husband, John H. Mallon; and said business has been carried on continuously in and upon said premises since the making of said tripartite agreement to the present time, either by said John H. Mallon in his own behalf (which necessarily includes the time from the signing of the agreement down to the first of May, 1898) or in behalf of his wife" (which covers the rest of the period).
Now, the agreement made the payment to plaintiff by the brewing company of the full purchase price dependent upon a sale to Mallon of six hundred barrels of beer. From the findings, as we have seen, it appears that he never sold Mallon any such amount. Therefore, the plaintiff did not become entitled either to twelve hundred dollars or the residue of the purchase price. But, it is said, this presents a very hard case for the plaintiff, and good faith required the brewing company to take action to protect the plaintiff. But that is precisely what the brewing company did, for when Mallon conveyed this property to his wife and she started to do business in her own name, the managers of the brewing company, realizing that the company would be unable to collect anything from her, and that Mallon had made it impossible to carry out the contract, at once offered to transfer to plaintiff all the rights which the company had in the premises, including the mortgage which had been given to it by Mallon. In the absence of evidence indicating misconduct on the part of the defendant brewing company or collusion between it and Mallon, this tender, it is quite apparent, was all that *Page 314 equity and good conscience required of it; while legally, as is apparent from the facts stated, the plaintiff never became entitled to receive from it but $839.68, being two dollars a barrel for the beer sold to Mallon.
The judgment should be affirmed, with costs.
MARTIN, VANN, CULLEN and WERNER, JJ., concur with O'BRIEN, J.; PARKER, Ch. J., reads dissenting opinion; GRAY, J., absent.
Judgment reversed, etc.