Insofar as plaintiff promises to tender not less than 100 tons of product, there is an implied promise on Penbrook's part. The second "Whereas" clause of the contract expresses the ability and willingness of Penbrook to transport the products of plaintiff. Other provisions of the writing, such as Penbrook's promise to provide equipment and facilities for shipping the products, and the provisions for payment and termination compel such a conclusion. Any other interpretation would render such provisions meaningless. To quote again from WOOD v. LUCY, LADY DUFF-GORDON, supra, at 214, "a promise may be lacking, and yet the whole writing may be instinct with an obligation . . . . [citations omitted] If that is so, there is a contract."
The finding by the court that parol evidence is inadmissible to contradict the express term of the contract obligating plaintiff to tender and Penbrook to transport a minimum of 100 tons of products is dispositive of the matter before the court. It is undisputed that Penbrook had carried in excess of 100 tons of products by June 6, 1971, the date of the alleged breach. Penbrook was not contractually bound to accept for shipment any products in excess of the 100 ton minimum annual amount and therefore there was no breach of the contract.
Assuming, arguendo, that an implied promise to transport more than the minimum 100 tons of products could be found, the contract would, nonetheless, be unenforceable for indefiniteness. It is well settled that all the terms contemplated by an agreement need not be fixed with complete and perfect certainty for an agreement to constitute a contract. V'SOSKE v. BARWICK, 404 F.2d 495, 500 (2d Cir. 1968) (applying New York law), cert. denied, 394 U.S. 921, 22 L. Ed. 2d 454, 89 S. Ct. 1197 (1969). However, a court cannot predicate an implied quantity term on pure speculation. There must exist an established trade or use in order to measure or make reasonably certain a quantity term which is otherwise uncertain. NASSAU SUPPLY CO. v. ICE SERVICE CO., 252 N.Y. 277, 169 N.E. 383 (1929).
In the instant case there was no established business between the parties. It is undisputed that the amount of production at plaintiff's Greenport factory was uncertain because it was a new facility with no established output. As discussed previously, the void in this writing is too great to be filled by implying an output term as well as an exclusive dealing promise. In the absence of an established trade between the parties, the indefinite quantity cannot be expanded beyond its expressed minimum of 100 tons.
Plaintiff asserts that the subsequent conduct of the parties in this action should be considered in interpreting this agreement. However, the court need not look to subsequent conduct when the language of the agreement is unambiguous, as it is here. BRAINARD v. NEW YORK CENTRAL R.R. CO., 242 N.Y. 125 , 151 N.E. 152 (1926). Plaintiff alleges that the issue of lack of mutuality has been waived by Penbrook because the reason Penbrook terminated the contract was its unprofitable operation under the existing rate schedule, not because of any lack of mutuality in the contract.
The court has found that, under the contract, plaintiff was bound to tender 100 tons of product and Penbrook was obligated to transport 100 tons of product. Beyond that quantity, the writing merely represents an agreement of the parties establishing the terms which would govern the shipments of product which exceeded the minimum 100-ton annual amount. Accordingly, since Penbrook had already transported well over 100 tons of product, its refusal to accept later shipments did not constitute a breach of contract and therefore the doctrine of waiver is inapplicable.
The final matter before the court is Penbrook's counterclaim in the sum of $20,300.00 for services rendered. Plaintiff admits in paragraph 14 of its complaint that it owes Penbrook that amount. It is also evident from the complaint that, in calculating the damages claimed in the ad damnum clause, credit was given defendants in the amount of $20,300.00. The entry of summary judgment on the counterclaim in defendants' favor would have the effect of duplicating the $20,300.00 credit. However, since plaintiff has not contested defendants' motion for summary judgment on the counterclaim, it will be granted. In order to avoid manifest injustice, plaintiff will be granted leave to amend its complaint in order to recalculate the total amount of damages it seeks from defendants.
An appropriate order will be entered.
R. Dixon Herman United States District Judge
Dated: February 18, 1975.
AND NOW, this 18th day of February 1975, in accordance with the memorandum filed this date it is ORDERED that the motion of defendants for partial summary judgment on paragraph 10 of the complaint be and is hereby granted.
IT IS FURTHER ORDERED that the motion of defendants for summary judgment on its counterclaim be and is hereby granted, with leave to plaintiff to amend the ad damnum clause of its complaint.
R. Dixon Herman United States District Judge
THIS CONTRACT, made and entered into this 29th day of July 1970, by and between INTERPACE CORPORATION (hereinafter called shipper) and PENBROOK HAULING COMPANY, INCORPORATED (hereinafter called carrier).
WHEREAS, CARRIER is engaged in the transportation of property as a contract carrier by motor vehicle, and operates over the public highways of the State of New York under and pursuant to Permit No. MT-8810.
WHEREAS, SHIPPER desires to have Carrier transport, deliver and unload concrete pipe and related products produced by shipper, and Carrier is willing and able to furnish such transportation;
NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained the parties hereto agree as follows:
1. Carrier shall provide equipment and facilities necessary to, receive and safely transport shipments of concrete pipe, fittings, and specials including, but not limited to, tees, elbows, wyes, and bands (used on concrete pipe for a change of direction) under contract with Interpace Corporation : Only for shipments from shipper's plant site in the town of Greenport (Columbia County) to job sites, construction sites, and temporary storage areas at all points in the state of New York and returned and rejected merchandise of the same description and dunnage in the reverse direction.
2. Shipper shall tender to Carrier each year during the term of this Contract for transportation by motor vehicle between points set forth in Item 1 above, not less than 100 tons of products described in Item 1 of this Contract.