Demuth v. American Institute — 42 N.Y. Super. Ct. 336

Majority

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WILLIAM DEMUTH, Plaintiff and Appellant, v. THE AMERICAN INSTITUTE OF THE CITY OF NEW YORK, Defendant and Respondent.

Headnote

I. CONTRACT.

1. Prospectus calling for applications, and applications made pursuant thereto, when they do not constitute a CONTRACT.

(a.) When the prospectus, and the blank form of application accompanying it contain no promise to grant that which should be applied for; a fortiori, where the nature of the prospectus and blank application is such as to inform the party applicant that the party issuing the prospectus reserves the right to exercise his discretion and judgment as to whether the application should be granted or not.

1. This although tha party applicant may have gone to expense in and about the carrying into effect his application.

II. APPLICATION OP. PRINCIPLE.

1. American Institute of the City of New York.

(«.) This institute, being about to hold a public exhibition, issued a prospectus calling the attention of inventors and manufacturers to it, and setting forth the manifold benefits to be gained by them by a public exhibition of their wares at said exhibition, and distributed the same with a blank form of application for “an allotment of space at the exhibition.” This blank form had among other things the following printed on it: “ Space. The managers do not agree to allot any special amount of room until the articles for which space has been desired are within the building,” Two of these prospectuses and accompanying forms of applications were received by plaintiff, who properly filled out the blanks specifying the amount of space required, signed them and sent them to the defendant with the required entrance fee, and in all other respects complied with the conditions printed on the application forms. Before the opening of the fair, plaintiff sent the wares specified in his application to defendant’s rooms, but defendant refused to receive them for exhibition. After this, defendant sent to plaintiff, by mail, a check for the amount of

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entrance fee paid by plaintiff, but plaintiff returned the check. The plaintiff incurred expenses in making certain wares attractive and fit- for exhibition. There were empty spaces in the exhibition room in which plaintiff’s wares might have been placed:

Held,

that plaintiff had no cause of action against defendant for its refusal to receive his goods for exhibition.

Before Sedgwick and Speir, JJ.

Decided May 8, 1877.

Appeal by plaintiff from judgment entered on dismissal of complaint.

The complaint averred that the defendant, for the purpose of inducing the plaintiff and others to exhibit their wares at an exhibition about to be opened by the defendant, issued a prospectus, wherein the attention of inventors and manufacturers was called thereto, and the manifold benefits to be gained by them, by a public exhibition of their wares at said exhibition, were set forth ; that, induced by said prospectus, the plaintiff signed an application, the form of which had been sent by the defendant to the plaintiff; and that, pursuant to said application, the defendants entered into a contract with plaintiff, whereby for the sum of $14, then paid by plaintiff to defendant, the defendant agreed to allow plaintiff to exhibit certain described wares at the exhibition of the defendants, to be held, and also agreed to furnish plaintiff a certain portion of space for the exhibition of his wares, and to furnish tables on which to place his show cases, and to give plaintiff an exhibition ticket; that the plaintiff prepared certain of his wares for the exhibition, in accordance with his application, at great cost, and duly offered them to defendant for exhibition, but the defendant, rejected and refused to receive the same, to the great damage. &c.

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The answer contained a denial of the material allegations of the domplaint.

On the trial, it was shown that the plaintiff received the prospectus specified in the complaint, which for the purposes of the trial seems to have been admitted to have been issued by the defendants.

The plaintiff thereupon sent to the defendant an application (or two, the evidence does not distinctly show which) filled up and signed by him, stating particulars, most of which are unimportant to this appeal. The space asked for was about thirty feet by six feet. The application was accompanied by the check of plaintiff for $14. The defendant received both.

The form of the application was as follows:

To the Managers of the 43rd National Exhibition of the American Institute, 1874.

Application is hereby made for an allotment of space at the Exhibition for the following

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The above described has been before exhibited.

I hereby apply for above, as specified, subject to the rules and conditions on the other side of this application, all of which I accept.

[Signed]

EiF” The applicant will please fill up the above blanks, and forward to “ General Superintendent, American Institute, Hew York.”

CONDITIONS UPON WHICH THIS APPLICATION IS EFFECTED.

[Here follow conditions which need not be set out.]

The plaintiff thereupon went to expense, that would not have been incurred by him, in the usual management of his business, to make certain wares attractive and fit- for exhibition. About, but before the opening of the fair, he sent these wares to the rooms of the defendants, but they refused to receive them for exhibition. A clerk of theirs gave as a reason that there was no room for them. After the fair opened, it was proved that there were empty spaces in the exhibition rooms in which plaintiffs wares might have been placed. The defendants sent to plaintiff a check for §14, but it was returned to defendants.

The plaintiff offered testimony as to damage. It is unnecessary to state the particular offers, for at the end of the case the judge dismissed the complaint, deciding that there was no contract, on which defendants were liable. Exception was taken.

Judgment was entered on the dismissal, and this appeal is from that judgment.

Sigismund Kaufmann, attorney, and Lewis B. Sanders, of counsel, for appellant.

Alfred T. Ackert, attorney, and Malcolm Campbell, of counsel, for respondent.

The plaintiff cannot recover, without showing that the defendants agreed to give him some space in their exhibition rooms, wherein to show his wares. There must be proof as to the quantity of space agreed upon. The size of the space is an essential term of the contract, and if there were no common assent tp that, there is in fact no contract, or it may be said, that if it be conceded there was a contract, its uncertainty as to what the defendants were to give the plaintiff, makes it incapable of enforcement (Brown v. N. Y. Central R. R., 44 N. Y. 79 ; Foot v. Webb, 59 Barb. 39 ; 2 Parsons on Contracts, 5th ed. note e to p. 557).

In the view we take of the case, it is unnecessary to look generally for a consideration, or to inquire in particular whether there was any implied request that the plaintiff should fit his wares for exhibition, the defendant promising that if he did so, space would be given, unless the articles offered were not suitable for a fair of the kind. There certainly was no independent request that the defendant should go to expense.

The prospectus of the defendant, inclosing, it is probable, the blanks for applications to be filled in and signed by. manufacturers and others, did not promise to give the spaces to be specified by the applicants. There was no proof that after the plaintiff’s application was sent in, the defendant ever did or said anything which was a promise to give the space the plaintiff stated in the application that he called for. On the contrary, there was, on the plaintiff’s construction of the evidence, a refusal to give any space. On the margin- of the blank which was filled up, the following was printed: “ Space. The managers do not agree to allot any special amount of room, until the articles for which space has been desired', are within the building.” That meant no more than that there was no particular quantity of space agreed upon then,

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or to be agreed upon at all, until the articles were within the building. If this was an agreement at all, it was, in the language quoted by Brown v. New York Central R. R. Co. “an agreement to enter into an agreement upon terms to be afterwards settled between the parties,” and this was said to be a contradiction in terms.

This statement upon the blank was a notice, that in the discretion of the managers, a part of the articles might not go into the exhibition, and that the space allotted might be so small that the applicant would not wish to exhibit anything, and the applicant could not have thought that the defendant requested him to go, to expense, on its account, in such a contingency.

It is clear that the making of the agreement, as to space, was to be postponed until a future time, and the proof shows that no agreement was made in the future. There being no agreement, the plaintiff cannot recover damages for being excluded from a space to occupy which he shows no right.

Still further, the plaintiff knew from the terms and conditions printed on the application that the defendant entertained the purpose of admitting articles after the fair was opened, on payment of a certain fee. In the nature of things, as plaintiff knew, the applications for space, before the opening of the fair, might call for a greater area than the defendant’s rooms furnished. At least, the plaintiff’s right, if he had any, was not superior to the defendant’s right to regard all these things, and the exercise of discretion and judgment as to them by defendant was contemplated by the circumstances of the case. Therefore, the mere fact that after the fair was opened, there was empty space, in which the plaintiff’s articles might have been placed, did not show that the defendant did not give to the plaintiff, -all that was held out as an inducement to make an ap

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plication, namely the exercise of the best judgment of the defendant under the circumstances of the case.

The judgment appealed from should be affirmed, with costs.

Speir, J., concurred.

Cases cited

Brown v. New York Central Railroad 44 N. Y. 79 N.Y. Comm'n App. 1870-12-28 p. 339