I dissent from the view of the majority. The construction of the agreement between the parties, as shown by the opinion of the majority, is that, as to defendants:
“Their personal interest in the bidding, to be publicly avowed at the sale, was the main consideration for the allowance which the plaintiff agreed to make. When that consideration failed, the plaintiff’s agreement founded thereon fell.”
It is not claimed that, in the written memorandum of the agreement, or in any conversation relating thereto before the sale, anything was said about personal bidding at the sale. The terms upon which the allowance was to be made did not require that a member of defendants’ firm should bid in person. Any employé of Zuricalday & Go. might bid, and so could a person interested on joint account with them. The terms precluded bids by or allowances to brokers. As said by the court of appeals (144 N. Y. 304, 39 N. E. 340):
“Elias was not a broker in the transaction. He was, and he had been for some time, interested'with defendants on joint account. * * * There was nothing in the transaction with the plaintiff which debarred Elias from continuing to participate with the defendants in the proposed purchase, as he had done in the past. It was easy for the plaintiff to have limited, and to have precisely defined, his engagement towards the defendants, with respect to their purchases of his goods. But he did not do so, and the fact is that the defendants did purchase over 8,000 boxes, which entitled them to the allowance agreed upon by the plaintiff.”
It is insisted that the evidence now before the court does limit the allowance to bids made personally by the defendants. As observed, there is no such limitation in the memorandum or paper of the agreement which was shown McKinney, and which embraces all the terms. Nor should the motive which Nixon says influenced him in making the agreement be considered, because it was not disclosed to defendants. It is manifest that the defendants were aware of no such motive or limitation, for they notified the bookkeeper of the auctioneers, before the sale, that purchases by Elias were for joint account, and "were to be charged to defendants, and on completion of sale that they were buying together for Zuricalday & Co. In availing themselves of the offer of an allowance, had they supposed that they must bid in person, why should they not have done so? That they did not is evidence that they never knew, or had any reason for knowing, that any such limitation was affixed to the offer. The testimony of Nixon that McKinney said, “Very well, I will work all I can against you,” furnishes no reason for not bidding in the name of his firm, but in the name of Elias, for the effect of that would be, on plaintiff’s theory of the agreement, to injure Zuricalday & Co. by depriving them of the allowance. To import into the agreement “a *91personal trust, which could be discharged only by the personal acts of the defendants, or by the authorized and announced use of their names at the auction sale,” is to import a new and additional term, which the parties did not agree .to, and of which Zuricalday & Co. had no knowledge. If we are to speculate about the motives that influenced plaintiff, and which were never communicated to the defendants, we have, in addition to the one suggested, equal reason for inferring that plaintiff desired the attendance of several bidders to quicken the sale, and therefore purchases by the defendants through several representatives in their several ñames would more effectually accomplish that object.
Again, what plaintiff undoubtedly sought was good prices and large purchases. It is a common practice in trade to give to those purchasing large quantities, as against smaller dealers, a larger discount. Here the allowance was based on the quantities purchased by defendants, and it is conceded that, but for the bidding done by Elias, the defendants would be entitled to the allowance. To deprive them of such allowance after they had purchased the agreed quantity, upon the theory of a term or limitation not in the memorandum as communicated to them, seems to me inequitable and unjust. As no stress is placed upon the argument that the defendants forfeited their right to an allowance by disclosing to Elias the proposition for an allowance, I pass it over with the remark that, as he was jointly interested, telling him was simply telling themselves, for the sale was to them.
I think the judgment was right, and should be affirmed.