Under the written agreement between the plaintiff and defendant the option which the buyer (plaintiff herein) had was to determine whether it would take 6,000 or 12,000 tons a year for three years of either San Domingan or Cuban molasses. It had no option to determine the times of delivery. The provision in the contract upon this point is as follows: “ The times of delivery are to be arranged from time to time between buyer and seller, who pledge themselves to mutual aid.” There is a provision in the contract that “ the molasses is to be delivered in cargoes of about 2,500 tons, but it is Understood between seller and buyer that they are to help each other in this respect. ” The complaint does not allege that the terms of delivery ever were arranged between the parties nor does it set forth that any attempt was made to • reach such an arrangement. All it sets forth is:
“Sixth. Plaintiff elected to receive from the defendant 12,000 tons of either San Domingan or Cuban molasses during the year extending from the 1st day of July, 1914, to the 1st day of July, 1915, and so notified the defendant and demanded delivery of such molasses, but the defendant refused and wholly failed to make any deliveries of molasses except as aforesaid.
“ Seventh. Plaintiff elected to receive 12,000 tons of either San Domingan or Cuban molasses under said contract, during the year extending from the 1st day of July, 1915, to the 1st day of July, 1916, and so notified defendant and demanded delivery thereof, but the defendant refuse [sic] and has wholly failed to make any deliveries of molasses whatsoever during said period. ”
There is no allegation that the defendant denied any aid to the plaintiff in arranging the times of delivery. There is no allegation that the defendant unreasonably refused to enter into any arrangement with the plaintiff as to the time of delivery or that the plaintiff sought to make any arrangement as to same with the defendant which the latter declined to *833accept. There is no allegation when plaintiff demanded that deliveries should be made —in what quantities, in what manner, in what times or how soon before the expiration of the year therein referred to. In fact, plaintiff absolutely ignores the language of the agreement and treats the option which it was given to determine the quantity and quality of the molasses, as an option extending to the times of delivery as well. Plaintiff had no option to determine the times of delivery. The minds of the parties never met in- any agreement as to the times of delivery, which the whole contract shows was an essential part thereof. That was a matter left open for future agreement, and such agreement must be reached by mutual consent or plaintiff might excuse the failure to reach such an agreement by the unreasonable and arbitrary refusal of the defendant to enter into any negotiations whatever upon the subject, or to reach a conclusion thereupon. In the absence of such allegations I do not believe that this complaint sets forth a good cause of action.
I, therefore, favor the reversal of the order denying the defendant’s motion for judgment on the pleadings herein.
Scott, J., concurred.
Order affirmed, with ten dollars costs and disbursements.