Court held valid as a contract an agreement in which the price was left to subsequent adjustment. The Court noted that under the particular facts there (and here) involved, it would be difficult to fix a price in the contract in advance of performance and therefore held that a reasonable price was presumed to have been intended. See also Abrams v. George E. Keith Co., 3 Cir., 1929, 30 F.2d 90. Prosser, Open Price in Contracts for the Sale of Goods, 16 Minn.L.R. 733 (1932).
Warner conceded at oral argument that it intended to enter into a binding contract. When the parties intend to enter into a binding contract the courts should strive to assist this intention. Corbin on Contracts, § 97. Loewus Co. v. Vischia, 1949, 2 N.J. 54, 58, 65 A.2d 604.
The provisions of the Uniform Sales Act fortify the conclusion that this agreement is a valid contract. N.J.S.A. 46:30-15 provides, in pertinent part:
'(1) The price may be fixed by the contract, or may be left to be fixed in such manner as may be agreed, or it may be determined by the course of dealing between the parties.
'(4) Where the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. * * *'
It has been said that there has never been a satisfactory construction of this section, in regard to contracts in which the price is left for future agreement. Prosser, Open Price in Contracts for the Sale of Goods, 16 Minn.L.R. 733, 1932. A sensible construction would be that the words '* * * it may be determined by the course of dealing between the parties' mean that if the parties subsequently agree upon a price, the contract should be enforced. Prosser, supra.
As is shown by the undisputed affidavit filed on behalf of Vulco, the parties did subsequently agree upon prices, and have never had any difficulty or disagreement concerning them. In fact, the present controversy apparently is not caused by any question of price. Warner is attempting to escape the binding force of an agreement which it entered into with the full intention of making a contract. Warner's attempted justification is the legal technicality that the provisions of the agreement as to price are too vague to permit the existence of a contract. Nevertheless, this allegedly 'vague' provision has been satisfactorily applied by the parties for a period of three years. It is the duty of the Court to effectuate the intentions of business men, not to block them, and that is the intent of the above provision of the Uniform Sales Act.
Warner's second attack upon this agreement centers on the allegedly illusory nature of Warner's promise to order such windows as Vulco may require. It is well established that requirement contracts are valid as long as the party has establishable requirements. Ferenczi v. National Sulphur Co., 1933, 166 A. 477, 11 N.J.Misc. 262; Loewus Co. v. Vischia, supra; 1 Williston on Contracts (Rev.Ed.) Sec. 104A. This is particularly true in an exclusive sales agency contract where it is in the interest of the distributor to order as many of the products of the manufacturer as he can possibly sell.
'Often a sales agency contract does not fix the amount of goods or the number of articles that the agent must take or sell. The exigencies of business often require they must be left flexible so that it may vary with general business considerations, and with manufacturing needs and difficulties. Such a contract usually contains various subsidiary promises on both sides. Such subsidiary promises are sufficient consideration for any return promises, so that the contract should not be held void for lack of 'mutuality'. Promises by the agent to advertise and promote sales with due diligence and by the manufacturer to supply goods to any reasonable extent as ordered are readily to be found by implication.' 1 Corbin on Contracts, Sec. 155 (1950).
Accord Wood v. Lucy-Lady Duff Gordon, 1917, 222 N.Y. 88, 118 N.E. 214.
The result in Loewus v. Vischia, supra, was created by the peculiar facts there involved, as distinguished from the facts in the case at bar. Here, Vulco's promise as agent to promote sales is readily implied from the provision in Section 5 of the contract that it is to receive a rebate for the cost of such promotional advertisement. Warner's promise to supply goods to any reasonable extent is readily implied from the contract provisions to supply Vulco with such quantities as it shall 'from time to time require'.
Since the agreement counted on is a valid contract, defendant's motion for summary judgment on Count 1 of the complaint, and for its dismissal, will be denied.
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