National Gum & Mica Co. v. Braendly

Barrett, J. (dissenting):

I concur with Mr. Justice Ingraham in this case. The question presented to us is not whether the contract was enforcible at law. Such cases as Miller v. McKenzie (95 N. Y. 575) and Beckwith v. Brackett (97 id. 52) have, therefore, no application.

It is undoubtedly good law that a promise to pay, given by A. to B., ill consideration of future services to be rendered by the latter, becomes valid and binding upon the rendition by B. of the services, in reliance upon A.’s promise. But how could such a contract be specifically enforced in equity ? It seems to me that any discussion of the doctrine of consideration in this aspect, or in its relation to an action for damages for breach of the contract, only tends to obscure the real question. That is, whether the contract here is such that it can be specifically enforced. Upon this question the acts of the parties under it are of but little moment. Equity looks at the terms of the contract itself, not at its sequences or results. In my judgment this contract cannot be specifically enforced ; not because of anything the plaintiff did under it, but because of what it had the power to do. Equity cannot aid the plaintiff, because the contract permitted it to discharge the defendant at its pleasure, and because its agreement to give him an interest in the profits was hopelessly indefinite. It would be a new doctrine of equity that a contract which fails to define with precision the legal obligation of one of the parties, can be specifically enforced because, under it, that party acted fairly and did the best he could in view of subsequent conditions. It is the agreement as made, not as it turns out, which the court is authorized to enforce. Thus it is not of- the slightest consequence whether there Were profits or not, or whether the defendant left the plaintiff on that account or hot. He is not sued for a breach of his contract. He is sought to be held to it. And this cannot be done because, if it were the other way, the plaintiff could not be held to it. The plaintiff mcoy employ the defendant at twenty-five dollars per week, and it may give him some kind, of an interest in the profits. And — it may not: The court certainly could not compel it to do so. How can this plaintiff seriously ask us to specifically enforce such a contract against the defendant so long as it desires ? I do not wish to be understood as limiting my concurrence with Mr. Justice Ingraham to this single question of law. I also concur in his conclusions upon the facts and upon the other questions which he discusses.

Ingraham,, J., concurred.,

Judgment reversed, new trial ordered, costs to appellant to abide event.