Jacobs, Donges and Bigelow. The opinion of the court was delivered by Bigelow, J.A.D.
The respondent, Miller and Sons Bakery Co., agreed to buy the business conducted by the appellant Selikowitz, and paid $2,000 on account of the purchase price when the contract was signed November 17, 1948. One of the stipulations of the contract read:
"The seller agrees to procure an employment agreement with James Koye, with the restrictive covenant (2 yrs.) not to engage in a similar business or to take the customers of the seller, at a salary
of $63.00 per week, for a period of one year. If the seller cannot obtain such an agreement, the purchaser may, at his option, declare this contract void, and be entitled to a return of his deposit in full, without damages to either party."
The buyer later assumed to exercise his option to avoid the contract, and the question in the suit is whether the circumstances gave him the right to make that election. On November 26th, the seller's lawyer, Harold J. Sklarew, wrote to Lewis S. Jacobson, attorney for the buyer, as follows:
"I am enclosing, herewith, copy of contract which I negotiated between Selikowitz, and his driver, James Koye. It was necessary for me, upon Koye's request, to make the contract for two years in order to get a two year restrictive covenant. He also insisted on the clauses in the addendum , because of the fact that he presently has this arrangement with Selikowitz. Please let me know whether the same meets with your approval, so we can at least dispose of this question at the closing."
Benjamin Miller testified that on November 28th or 29th, he had a talk with Selikowitz:
"I told him I can't take the business with such an agreement (meaning the agreement with Koye). He says, 'That is the best agreement I can get. Otherwise the deal is off.'
"To the question, 'Did you say anything to him?' he replied, 'Off is off; what can I do? That is all.'
"'You said it is off?' he was asked, and repeated, 'Off.'"
On cross-examination, Benjamin restated what he had said to Selikowitz: "The deal is off. You can't get a contract and the deal is off." Samuel Miller corroborated his brother Benjamin, but Selikowitz denied that the conversation took place. Benjamin Miller testified that on November 27th or 28th, he had a similar conversation with Sklarew. This also is denied.
On December 1st, Jacobson wrote Selikowitz "to effectively cancel" the agreement to buy the business. "This action on the part of my client is effected by virtue of your inability to comply with paragraph 19," -- the paragraph quoted above. ...