The sole question in this case is whether or not the contract between the parties was void for lack of mutuality. Such a lack exists where one is bound and the other is not.
In the present case the plaintiff agreed to purchase and accept from the defendant a specified number of automobiles, depositing a sum of money to be credited as part payment, in advance, of thirty-five dollars on each automobile accepted. Nowhere in the contract does the defendant agree to sell and deliver the automobiles, or any of them, unless a schedule of delivery dates may be considered such an agreement. If it may be, however, its force is entirely destroyed by the following clause which provides as follows: “ In the event that the Company shall fail to deliver any one or more automobiles in accordance with the foregoing schedule, it may at its option return the Agent’s deposit on such car or cars, or deliver such car or cars as soon thereafter as it reasonably can; it being distinctly understood and agreed, however, that no liability whatsoever shall attach to or be asserted against the Company in case of its failure to deliver any of said automobiles for any cause whatsoever.”
By this clause it was left entirely optional with defendant whether or not it would deliver any automobiles at all, and if it refused to deliver any it became subject to no penalty or damages. It seems to me that it would be difficult to find a clearer case of a contract imposing an obligation on one party and no obligation whatever on the other.
I am unable to see that the appointment of plaintiff as defendant’s agent cured the lack of mutuality, because the position of agent to sell automobiles was an empty thing unless
The determination of the Appellate Term should be affirmed, with costs.
Dowling and Hotchkiss, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented.