#### Albert Krumenacker, Appellant, *v.*John F. Betz, Respondent.

(Supreme Court, Appellate Term,

March, 1899.)

Contract — Unilateral agreement — Consideration.

The mere written promise of a brewer that he would credit a beer bottler, who could not sell the brewer’s beer to certain customers of the bottler as cheaply as the brewer could, with a certain sum for every box of beer which the brewer sold to said customers, accompanied by an agreement of the parties that no beer was to be sold to outsiders at a price less than that at which the bottler had already agreed to sell, cannot be enforced against the brewer as the agreement merely requires the bottler to continue not to sell and there is therefore no act or forbearance upon his part which could furnish a consideration to the brewer for his execution or performance of the agreement.

Appeal by the plaintiff from a judgment rendered in favor of the defendant in the Municipal Court, eleventh district,' New York city.

*745J. Baldwin Hands, for appellant.

Paskusz *&*Cohen, for respondent.

MacLean, J.

A beer bottler and a beer brewer agreed, not under seal, as follows: “ In view of the existing contracts of John F. Betz Bottling Department, through their salesman, * * * the following arrangement is entered into, and confirmed by both parties, by their respective signatures annexed hereto: The four parties (named) are to be served by John F. Betz Bottling Department and seven and one-half (7 1/2) cents is to be credited for each box so delivered on their respective contract to Albert Krumenacker’s account. It is again mutually agreed that no Betz beer is sold by either parties,' to anybody that does not come under the clause particularly provided for by this contract under sixty (60) cents net. Ho rebates or discounts of any kind to be allowed by the respective parties, or their agents.” For a while the brewer made the credits on a prior indebtedness of the bottler, but later declined. Then the bottler brought this action upon “ the agreement ”, which he introduced in evidence, together with proof of sales made by the defendant to the four parties named, and said, on cross-examination, that before the arrangement was entered into, the agent of the defendant went to his customers and offered the beer cheaper than he sold it to them; that he sold it for sixty cents, and defendant’s agent sold it for fifty-five cents; that he complained to the agent, who said, *“*I will make it good,” and thereupon the agreement was signed by the plaintiff and by the defendant’s attorney in fact. Counsel on his behalf excluded all further questioning of him respecting statements or engagements made as to the agreement both before and after it was signed, with “ The contract speaks for itself.” After the plaintiff rested, and the defendant’s counsel had moved for a dismissal on the ground of failure of consideration, and the justice had intimated that it looked to him like a mere gift, the case was reopened, the plaintiff recalled, and to the question by his attorney: “ What was the reason for this contract being executed? ” answered, “ Because they sold the beer for fifty five cents, and for that reason I could not make any money.” After plaintiff again rested, the motion for dismissal was renewed by the defendant’s counsel. The plaintiff’s counsel asked to go to the jury. That request was denied, and an exception taken. Thereafter judgment was rendered for the defendant.

*746As explained by himself, the “ agreement ” bound the plaintiff to nothing except continuance in the desuetude to which he was already constrained by circumstances beyond his control. There was thus no act or forbearance, or promise thereof, offered by the plaintiff to, and accepted by, the defendant as an inducement to enter into the agreement, which, therefore, cannot be enforced, for the- laws of this state supply no means, nor afford any remedy to compel the performance of an agreement made without valuable consideration, which may be neither past fact, nor mere motive, nor something to be imagined by the court, even upon ingenious suggestion of counsel.

The judgment should be affirmed, with costs.

Leventritt, J., concurs.

Freedman, P. J. (Concurring.)

The agreement upon which

this action was brought was a unilateral one. It bound the plaintiff to nothing and he parted with nothing on the faith of it. The defendant received no consideration whatever. The judgment for the defendant is, therefore, right on the merits.

The judgment should be affirmed, with costs.

Judgment affirmed, with costs.