(dissenting). Common honesty and justice require that claimant should recover against the State. The price of milk was raised by the State during the term of the contract. The Division of Standards and Purchase was under obligation to adjust the price paid to claimant so that it would not “ be out of proportion to the terms of the official price regulations.”
“It is true that he does not promise in so many words that he will use reasonable efforts to place the defendant’s indorsements and market her designs. We think, however, that such a promise is fairly to be implied. The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view today. A promise may be lacking, and yet the whole writing may be ‘ instinct with an obligation ’ imperfectly expressed. (Scott, J., in McCall Co. v. Wright, 133 App. Div. 62; Moran v. Standard Oil Co., 211 N. Y. 187, 198.) If that is so, there is a contract. * * * We are not to suppose that one party was to be placed at the mercy of the other. * * *.” (Wood v. Duff-Gordon, 222 N. Y. 88.)
The judgment in favor of the State should be reversed on the law and facts, with costs, and the claimant should have judgment for the sum of $6,546.61, with interest from the 31st day of December, 1938, with costs.
The following findings of fact should be reversed: 2, 11, 12, 13, 14, 15, 17. Conclusions of law numbered 2, 3 and 4 are disapproved.
The court makes the following finding of fact: That claimant delivered 400,160 quarts of milk to the State of New York at the *429Creedmoor State Hospital between the 1st day of September and the 31st day of December, 1938, both inclusive; that the price thereof was increased $.01636 per quart by reason of the promulgation of the price fixing order by the State.
Claimant is entitled to a judgment against the State for $6,546.61, with interest from the 31st day of December, 1938, with costs.