Van Slyke News Agency, Inc. v. News Syndicate Co.

Hinman, J.

(dissenting):

The contract was to supply plaintiff with the number of papers ordered so long as the parties co-operated and the plaintiff increased the circulation. The plaintiff was to have the agency for the sale of the papers in the city of Albany. This was the defendant’s agreement. Was there consideration and mutualitjr? Anything of value, any promise to do what a party is not bound to do, constitutes a consideration. Mutuality in a contract signifies the existence of obligations on both sides. The plaintiff advanced $100 as a deposit to cover the new account. This was an advance payment upon the general account. It was a detriment to the plaintiff and a benefit to the defendant. It constituted consideration and supplied the element of mutuality. Of course the duration of the contract was indefinite but that does not make it *740invalid. It is no more indefinite than the contract in the case of Ehrenworth v. Stuhmer & Co. (229 N. Y. 210). The charge of the court to which exception has been taken seems to be fully sustained by such case.

Upon the question of agency we have the fact that the plaintiff had been in similar business before for the defendant and the arrangements had been made through the same agent. The defendant took and applied to its own use the $100 check, which upon its face recited that it was a deposit upon the new account. When a principal ratifies without full knowledge of the facts under circumstances which are sufficient to put a reasonable man upon inquiry, such lack of full knowledge does not protect the principal if he deliberately chooses to act without such knowledge. (31 Cyc. 1257.)

The plaintiff was entitled to recover whatever loss it had sustained up to the time of the action and future gains which were prevented by the breach of the contract. (Nash v. Thousand Island Steamboat Co., 123 App. Div. 148; Sayer v. Wilstrop, 200 id. 364, 375.)

I vote for an affirmance of the judgment.

Judgment modified by reducing the same to seventeen dollars and thirty-nine cents, with interest thereon from July 24, 1922, and as so modified judgment and order affirmed, with costs to the appellant in the trial court and without costs in this court,