Mackintosh v. Thompson

O’Brien, J.:

In view of the vague and indefinite conversation between the plaintiff and one of the defendants, Mr. Kimball, which the former relies upon as creating a binding contract, it is clear that if nothing; had been done under it and this were an action for breach of an éxecutory agreement, no recovery could be had under the recent decision of the Court of Appeals in United Press v. New York Press Co. ( 164 N. Y. 406 ). In that case, as said in the head note, there was “ an executory contract in writing, attempting to provide over a period of years, for the furnishing of news reports on each day at a price ‘ not exceeding three, hundred dollars during each and every week that said news report is received,’ ” and this was held to be- “ so indefinite as to the price to be paid as to preclude a recovery of substantial damages for its breach in refusing to receive the service.” And in the course of the opinion it was said: “ It is elementary in the law that, for. the validity of a contract, the promise or the agreement of the parties to it must be certain and explicit, and that their full intention may be ascertained to a reasonable degree of certainty. Their agreement must be neither vague nor indefinite, and, if thus defective, parol proof cannot be resorted to.” In referring, however, to the rule to be applied to executed contracts, the learned judge says : “ I entertain no doubt that where work has been done or articles have been furnished, a recovery may be based upon quantum meruit or quantum valebant.”

.It is this rule that the plaintiff invokes, insisting that although the amount of increased salary which he was to receive was left undecided, there was sufficient in the conversation from which an agreement to pay an enlarged sum can be inferred, and services, as the result, having been rendered, the law will imply a promise to pay' the reasonable value of such services. The error into which we think the appellant has fallen is in assuming that upon facts such as *29 are presented here the law will infer a binding contract. To be enforced, whether executory or executed, contracts must be.sufficiently definite and certain in terms that it can be seen that the minds of the parties have met upon some settled terms. Undoubtedly where one person requests another to render to him services and they are rendered, the law will raise an implied agreement to pay the reasonable value of such services. Here, however, the plaintiff had been working at a stated salary per week, and all that appears is that he was dissatisfied with the amount received, and that on the two occasions with reference to which he testifies, he called the attention of his employers to the fact that without some advancement his intention was to seek other employment or start in business for himself. And the only assurance or promise made to him from which a contract is to be spelled out is from what occurred at the second interview, when, as he testifies, Mr. Kimballsaid that “ his idea was to give me an interest in the Altman Building and in the Empire Building. He said that the amount of the cost of those buildings was so enormous ‘ that you may rely upon the compensation being enlarged.’ Then I asked him, ‘ How am I to know what I will get % ’ He said, ‘ You can rely upon me; I will see that it is all right.’ Further, on leaving, he said, ‘ You don’t know what I have in view.’ ”

The most that can be predicated upon such a conversation is that Mr. Kimball was favorably disposed to the consideration of the question of increased salary. But that no definite agreement of any kind was made for an increase of salary for any definite period or any stated amount is evidenced from the plaintiff’s own statement at the trial, that he was to get a share in the profits of the buildings in addition to his regular salary. He did not claim that he was to be taken in as a partner, but that Ms additional compensation in some way was to be measured—how does not appear — by the profits realized upon the two buildings.

There is not sufficient in this vague and indefinite conversation to support a contract, because there is nothing to show that the minds of the parties met upon any binding agreement. Nor was there any consideration for an alleged promise to pay an increased salary, for the plaintiff does not say that he agreed or was under obligation to remain with the defendants for any fixed period of *30 time. The fact is that after this one conversation the subject was never referred to again—whether because the plaintiff had no desire to bind himself to remain for' any fixed term or because he was willing to trust to the generosity of the defendants to compensate him beyond the salary which he was receiving.

Apart, therefore, from the question, which we do not decide, as to-the legal effect of the variance, if any, between the pleading and the-proof, and giving the plaintiff the benefit of such proof as he offered,, we think that the conversation relied upon did not rise to the dignity of a contract, and, even if viewed as_ a contract, it is too vague- and indefinite to enforce.

We think the disposition made by the learned trial judge in dismissing the complaint was' right and that the judgment appealed, from should be affirmed, with costs.

Van Brunt, P. J., Rtfmsey and Ingraham, JJ., concurred;; Hatch, J., concurred in result.

Judgment affirmed, with costs.