59 Minn. 175 | Minn. | 1894
The complaint is defective in two particulars:
First. It does not show any contract between the parties. What it calls a “contract” (Exhibit A) was a letter from defendant to plaintiffs, setting forth evidently all the terms proposed for a contract between the parties. It contained this clause, “I understand that this acceptance by me, when confirmed by a certificate of agency ■signed by you, constitutes an agreement of agency between us for the sale by subscription of the above-named work in said territory, and that the terms and limits of such agency are as hereinafter stated.” The complaint does not show that any certificate of agency was signed, or that in any other manner, understood and assented to by both parties, for the purpose, Exhibit A became a contract binding both.
Second. The breach alleged is in effect the failure of defendant "to make requisition on plaintiffs for and remit for the stipulated number of copies of the book within the stipulated times. But it is not alleged that plaintiffs had the copies to deliver on requisition,
This point is not covered by tbe general allegation in the complaint that the plaintiffs “have fully complied with and performed all the stipulations and conditions of said contract, and each and every of the same, by them to be kept and performed.” For the plaintiffs might have done all that they were to do under Exhibit A, and yet not be entitled to recover. They did not own the copies of the book, but expected to procure them from a third person; and Exhibit A does not purport to bind them absolutely to procure them for delivery to defendant. It, being addressed to plaintiffs, contains this clause: “And to not hold you liable for damage for
failure to consign said books in accordance with my requisitions, when such failure arises through no fault of yours; but in case of such failure on your part my time for making requisition and remitting is to be extended until you notify me that yon are prepared to consign the books.” The plaintiffs might have been unable to deliver tbe copies through no fault of their own, but wholly through the fault of the person from whom they expected to procure them.. The allegation quoted from the complaint does not cover the acts of that party.
Order affirmed.
(Opinion published in 60 N. W. 1097.)
