Outlet Embroidery Co. v. Mills

228 A.D. 113, 239 N.Y.S. 182, 1930 N.Y. App. Div. LEXIS 12113

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 1930
• Status: Published

Opinions

O’Malley, J.

The essential facts upon which the action is predicated are stated in the dissenting opinion of Mr. Justice McAvoy. It is to be noted that the contract fixes a firm price. Because such price was made subject to possible future tariff revision, the agreement did not become unenforcible because of indefiniteness. Nothing in the pleading attacked shows any change in the existing tariff regulations. Such change would be a condition subsequent to be pleaded and proved by the defendant. If such revision would render the price indefinite or unascertainable, then it might be said that the defendant could avoid the obligation asserted against it. “ Indefiniteness must reach the point where construction becomes futile.” (Cohen .& Sons v. Lurie Woolen Co., 232 N. Y. 112, 114.) (See, also, Williston on Sales [2d ed.], § 8, p. 11.)

The order should be affirmed, with ten dollars costs and disbursements, with leave to the defendant to answer on payment of said costs and ten dollars costs of motion at Special Term.

Finch and Martin, JJ., concur; Dowling, P. J., and McAvoy, J., dissent.