I would affirm. I do not find any support for the view of the majority that the letter agreement is sufficiently ambiguous to deny defendant summary judgment. We do not deal, as the majority opinion suggests, with a case involving frustration of performance. The written agreement is clear: that in the event of a failure to establish a letter of credit, the agreement between the parties was to be null and void. There is a specific negation of any obligation in the event there is a failure to establish the letter of credit, without which the bicycles were not to be delivered.
Fo bicycles were delivered. Had the delivery of any bicycles been accepted, we might be confronted with a situation giving a color of support to the “ absurdity ” argument advanced in the opinion of the majority. Recovery in such an instance would be predicated, not upon the agreement, but upon quantum meruit, based on unjust enrichment, supported by an instrument in *231writing sufficient to satisfy the Statute of Frauds. And, further, I find nothing absurd in the specifically spelled out willingness of the defendant, seeking to acquire bicycles, to pay a u finder’s fee ” to plaintiff, if the plaintiff was able to get bicycles through defendant’s letter of credit. But I do perceive “ absurdity ” in asking the defendant to respond in damages for bicycles which he never obtained. *■
Furthermore, the letter at issue having been drafted by the plaintiff, under familiar rules of construction, any ambiguity, assuming such to exist, which is not here the fact, must be resolved against the plaintiff, the author of the instrument.
The sole purpose of the agreement was obviously to give recognition to plaintiff’s entitlement to a commission of $2 per bicycle, for any bicycles actually delivered, as a result of plaintiff’s efforts, in the event defendant established the required letter of credit, enabling the latter to acquire such from an undivulged manufacturer, whose name was to be disclosed by plaintiff.
The plaintiff did not offer to bind itself to have delivered any specific number of bicycles. Its offer, formulated in the guise of an illusory contract of sale, was “ subject to prior sales.” The defendant did not bind itself to purchase any specific number of bicycles. If this not be so, the provision of the agreement for the submission of samples of the bicycles, and the further provision calling for nullification of the agreement, in the event of failure to open the specified letter or letters, would be meaningless. Absent any such commitment, even in the absence of the clause specifically making the plaintiff’s “ offer null and void ”, if the letters of credit were not opened, any claim for undelivered bicycles would be so temí vas as to be the proper subject of a motion for summary dismissal. (Elliman & Co. v. Sterling Garage, 279 App. Div. 20, affd. 304 N. Y. 846.)
In any event, the “ contract ” is clear and unambiguous, and no extraneous circumstances may be considered to whittle away the clearly declared intent of the parties, so prominently expressed in the writing drafted by plaintiff. (West, Weir & Bartel v. Carter Paint Co., 25 N Y 2d 535.) "Where language used in a contract is clear and unambiguous, there is no opportunity for interpretation or construction. (4 Williston, Contracts [3d ed., 1961], § 609.)
Special Term was correct in concluding that there was no factual basis to support plaintiff’s claim, in view of the conceded fact that the required letter of credit was not obtained, thus nullifying the viability of the agreement, and upon the *232further fact that plaintiff was not entitled to a commission, until “ after delivery ” of the goods to defendant in New York.
Markewich and Capozzoli, JJ., concur with Steuer, J.; McGiverh, P. J., dissents in an opinion.
Order and judgment, Supreme Court, New York County, entered on November 16, 1973, and December 6, 1973, reversed, on the law, the judgment vacated, and defendant’s motion for summary judgment denied. Appellant shall recover of respondent $60 costs and disbursements of this appeal.