Opinion
April, 1904.
John Howard Corwin, for the appellants.
Everett P. Wheeler, for the respondent.
I think that the nonsuit cannot be sustained. The learned court, by consent of counsel, submitted to the jury as the second question: "Was the agreement made between the plaintiffs' predecessor and the defendant's predecessor in October, 1897, to continue so long as Walter D. Munson should carry cattle to Cuba?" The learned court, without objection, charged the jury that if they answered this question in the affirmative, they should pass to the further question whether the defendant took over the contract. The testimony of Mr. Rohl, admitted without objection as to variance, justified the submission of this question to the jury. It is, therefore, not essential that we should discuss the terms of the contract as pleaded in the light of its alleged uncertainty, for its termination was fixed by the cessation of Mr. Munson to carry cattle to Cuba. It cannot be urged that such a contract was so absurd or so unreasonable as to be non-enforcible. The consideration thereof was the mutual agreement to pay commissions, based on percentages, one to the other, as one or the other carried cattle. The contemplated and natural effect of the difference in the percentages was to throw the carriage to Mr. Munson's steamship line, and, as a corollary, Mr. Ceballos ceased from such carriage. The question as to whether the defendant took over the contract, whether there was a novation, as the parties termed it, was for the jury. Professor Ames (6 Harv. L. Rev. 184, 186) says: "The difficulty in novation cases is, therefore, no longer one of law, but of fact." The bill of sale by Mr. Munson to the defendant corporation, the retention of the chief ownership of that business by Mr. Munson, the accountings rendered thereafter to the plaintiffs upon the basis of the agreement, the payments thereon, the acceptance of the same by the plaintiffs and the bringing of this suit ( Osborn v. Osborn, 36 Mich. 48) justified the submission. ( De Witt v. Monjo, 46 App. Div. 533; Osborn v. Osborn, supra; Robbins v. Robinson, 176 Penn. St. 341; Mitrovich v. Fresno Fruit, etc., Co., 123 Cal. 379; Regester v. Dodge, 61 How. Pr. 107, citing many authorities; Thompson v. Percival, 3 Nev. Man. 167; Mulgrew v. Cocharen, 96 Mich. 422; Walker v. Wood, 170 Ill. 463; Lynch v. Austin, 51 Wis. 287; Shaw v. McGregory, 105 Mass. 96.) If the contract of substitution of the defendant be established, then there is consideration. LONGWORTH, J., in Bacon v. Daniels ( 37 Ohio St. 279) says: "The existence of the contract being established, the consideration is self evident." (See, too, Ryan v. Pistone, 89 Hun, 78; Kromer v. Heim, 75 N.Y. 574.)
I think that the contract was not necessarily in violation of the Federal Anti-Trust Law (26 U.S. Stat. at Large, 209, chap. 647). As testified to by Mr. Rohl, Mr. Munson agreed to pay percentages on freights earned by Mr. Munson, and Mr. Ceballos agreed to pay Munson one-half of such percentages on all freights earned by Ceballos as long as either should carry any cattle to Cuba. There was no provision as to maintaining rates or as to preventing competition. Prices were not fixed, dealings were not confined to a combination of persons, nothing tended towards a monopoly, and, therefore, I think the parties are without the ban of the law. ( Leslie v. Lorillard, 110 N.Y. 519, 534; Brooklyn Elevated R.R. Co. v. B., B. W.E.R.R. Co., 23 App. Div. 29. )
But I think that the verdict is against the weight of evidence. Mr. Rohl alone testified that the agreement was to continue so long as either party carried freight. But Mr. Rohl is an interested witness, and the testimony of Mr. Munson, also an interested witness, is that there was no conversation relative to the duration of the agreement. The record, however, does not present merely the testimony of Mr. Rohl against that of Mr. Munson, but there is a correspondence in evidence. The vice-president of the defendant writes to the plaintiffs that they are forced to discontinue the payment of the commissions after a certain date. Mr. Ceballos answers that he noticed by that letter that the long-standing agreement is to be terminated by a certain date named in the Munson letter, expresses the possibility of their altering their minds, asks whether they consider their letter of termination as final, and trusts that they may find some means of continuance. Later, Mr. Ceballos writes to ask whether there cannot be an appointment made with reference to the cattle business, and to this the defendant answers that they cannot change their decision. The attitude of the plaintiff is entirely antagonistic to the idea that the defendant was bound by a definite contract, i.e., one which they could not terminate at will upon fair notice. Under all of the circumstances, I advise the submission of the case to another jury.
The judgment of nonsuit should be reversed, and a new trial be granted.
All concurred.
Judgment reversed and new trial granted, costs to abide the event.