Cool v. Cuningham , 25 S.C. 136 ( 1886 )

The opinion of the court was delivered by

MR. Chiee Justioe Simpson.

(Omitting his statement of the case.) We have confined ourselves to the consideration of the questions raised in these exceptions. The first two involve questions of fact principally, and under the rule that findings of fact, even when they are within our cognizance, will not be disturbed, unless wholly unsupported by the evidence, the findings here must stand, as we have not found them thus unsupported.

The third brings up the main question in the case, and it is- a question of law involving the construction of the contract between the parties. The Circuit Judge held that there was no mutuality or reciprocity of obligation between the parties, and therefore that the agreement was a nudum factum. The defendant bought the exclusive right to sell the lamps in question in a certain county in the State of New York, which lamp the McCall Manufacturing Company alone had the right to manufacture. The enjoyment of this exclusive right depended, therefore, on the McCall Company furnishing him with the lamps needed for sale. If they were under no obligation to furnish the lamps, the right of the purchaser was the merest bagatelle. The right to sell an article, without the power to procure it for sale, amounts to nothing. We cannot say what may have been the intention of the parties outside of their written agreement, or how far the McCall Manufacturing Company would have supplied the defendant, or how promptly or how free from difficulty. We must construe the contract by its terms, and looking at the deed from that standpoint, there is certainly no mutuality or reciprocity of obligation in it. The company did not bind itself to furnish a single lamp to the defendant. In fact, it failed to bind itself to do anything. It only assigned the exclusive right to sell, retaining the right to prevent sale by failing to stipulate to furnish the article to be sold, and with no power in the defendant to compel it to furnish said article. Such being the construction of the agreement, we think the Circuit Judge was correct in holding it to be a nudum factum, and therefore in declining to enforce collection of the notes, except as to the $50.

4. No doubt that had the plaintiff shown that defendant was furnished with lamps by the company, and the defendant enjoyed the benefit of the contract, the plaintiff would have been entitled to recover, but this was not shown, and we agree with the Circuit Judge, that under this peculiar agreement the burden of showing this was upon the plaintiff. The 5th involves a question of fact. The 6th is disposed of by what has already been said.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.