The agreement upon which this action is brought, is to be treated as a part of the contract for the sale of the defendants’ stock in trade to the plaintiff. One inducement for the plaintiff to make the purchase, obviously was, that he might thereby secure the custom and patronage of the defendants’ establishment. He was willing to have the price depend upon this contingency. If he could have the benefit of the trade he sought, he could afford to pay a larger price for the goods. He accordingly agreed to pay $300 more in the one case than in the other, and the defendants stipulated that, as the plaintiff had paid and secured the whole amount, they would refund the $300, or give him credit therefor, if the contingency contemplated by the agreement should happen. To the validity of such an agreement I can perceive no objection.
The condition upon which the. $300 was to be refunded or credited to the plaintiff was, not only that he should lose the general trade of the hands in the employ of the defendants, but that he should lose it by reason of a change in the administration of the affairs of the company. Upon this question the plaintiff gave some evidence—enough, I think, to carry the case to the jury. It should have been submitted to them to determine, whether the general trade of the hands had been diverted from the plaintiff’s store, and if it had, then, whether such diversion had taken place in consequence of the change in the board of trustees, and whether the plaintiff had sustained damage *379thereby. If the verdict of the jury had been in favor of the plaintiff upon all these questions, as I think it might have been, I do not see why the plaintiff should not have recovered the amount claimed as a deduction from the price of the goods.
[Albany General Term, December 3, 1865.The defendants are not in a position to shield themselves from liability upon their contract, upon the ground that they had transcended their corporate power by engaging in the purchase and sale of goods. It may be that they had, but if so, having entered into the contract with the plaintiff and received from him the consideration for the goods, they are not at liberty now to repudiate that portion of the contract which imposes an obligation upon them. (See Steam Nav. Co. v. Weed, 17 Barb. 378, and cases there cited.) I am of opinion that a new trial should be granted.(a.)
Wright, Harris and Watson, Justices.]
This case has since been decided the other way, in the 4th District.