We agree that the judgment for the plaintiff should be reversed. But we would order a new trial and we dissent insofar as this court would dismiss the complaint.
The dismissal of the complaint is predicated on the ground that S. Frindel, Jr., as president of the defendant corporation, had no authority to bind it to the contract claimed by plaintiff. In our opinion, however, the question of authority was one of fact for the jury.
The plaintiff, a licensed real estate broker, was an employee of S. Frindel, Jr., Inc., but, as such employee, one of his principal duties was the management of the real property of the defendant corporation. The two corporations were closed corporations with interlocking officers and directors. Mr. Frindel was president of both corporations. And, when he made the alleged promise to the plaintiff that the defendant would pay him $25,000 if he continued on the job until its certain real property was sold, the board of directors of the defendant consisted of its president (Mr. Frindel), his wife and her brother. His said wife was then the treasurer of the defendant and the record and claimed owner of all of its stock, and she testified that Mr. Frindel “ ran the affairs ” of the defendant.
On the basis of these salient facts, we readily conclude that there was here a jury question as to whether or not the defendant’s president had the authority, express or implied, to bind the defendant to the alleged contract. (See Oakes v. Cattaraugus Water Co., 143 N. Y. 430; Twyeffort v. Unexcelled Mfg. Co., 263 N. Y. 6; Rosenkranz v. Schreiber Brewing Co., 287 N. Y. 322; Grossman v. Redi-Food Co., 2 A D 2d 670; 19 C. J. S., Corporations, §§ 994, 1034.) In any event, the jury could have found that the contract was one made in the interests of and for the benefit of the defendant and within the apparent authority of its president, and, the rights of creditors not being involved, that the defendant was estopped from denying the authority of its president to make it. (12 N. Y. Jur., Corporations, §§ 777, *262778; 19 C. J. S., Corporations, §§ 996, 1011. Also Wen Kroy Realty Co. v. Public Nat. Bank & Trust Co., 260 N. Y. 84, 91, 92.)
We do, however, agree with the majority that the record discloses the erroneous exclusion of material evidence. We are further of the opinion that there was an inadequate definition and presentation of the issues to the jury.
There was here a serious question as to whether or not there was a meeting of the minds of the parties on the essential terms of the alleged contract. “It is elementary in the law that, for the validity of a contract, the promise, or the agreement, of the parties to it must he certain and explicit and that their full intention may he ascertained to a reasonable degree of certainty.” (Varney v. Ditmars, 217 N. Y. 223, 228.) Therefore, in order for the plaintiff to recover, it was necessary that he establish an offer and promise which was definite and certain as to its terms. The promise of the defendant would not ripen into an enforcible contract with the plaintiff unless it was clearly understood what the plaintiff was to do on his part. It was necessary that there he a definite understanding, as alleged, that the plaintiff was to continue in the employ of S. Frindel, Jr., Inc., and to handle the management of defendant’s property until its sale. If it was so understood, then the plaintiff’s services would constitute a sufficient acceptance and consideration for defendant’s alleged promise. (See 1 Corbin, Contracts, § 137, pp. 426-427.) On the other hand, if it was not so understood, then there was no binding contract.
It is true that the trial court did, in a general way, correctly charge the law of contracts applicable to the situation here, hut, particularly in view of defendant’s exceptions and requests to charge, we conclude that the court should have been more specific in defining and explaining the issues to the jury. We are not satisfied, on the basis of the instructions given, that the jury would know that it was necessary for the plaintiff, in order to establish a binding contract, to show that it was understood between the parties that plaintiff was to work until the property was sold or until, without fault on his part, his services were terminated.
In the interest of justice, there should he a new trial.
McNally, Stevens and Bergan, JJ., concur in Per Curiam opinion; Babin, J. P., and Eager, J., dissent in part, in opinion.
Judgment reversed, on the law, and the complaint dismissed, with costs to defendant-appellant.