Confectioners' Machinery & Mfg. Co. v. Panoualias

134 F. 393 | 2d Cir. | 1904

COXE, Circuit Judge.

The exceptions present the single question whether under the terms of the agreement the plaintiff could recover for royalties upon .machines which the defendant had delivered to its customers but which had not been paid for and had been subsequently returned by them.

It is argued that although the contract requires the payment of royalties on all machines "sold or delivered,” the intent of the parties was that payment should be limited to machines “sold and delivered” and that the court should have so interpreted the contract. We cannot accede to this view. There is no ambiguity about the contract; its language is perfectly plain. In the short clause providing for the payment of royalties the words “sold or delivered” are twice used. There is no room for interpretation.

There is no pretense of fraud and no evidence of mutual mistake, but even if there were, defenses based upon such considerations cannot be availed of in a court of law. They should be presented to a court of equity. It seems improbable that there could have been any misunderstanding in the use of language deliberately chosen and twice repeated. There is certainly insufficient proof to warrant such a conclusion. The agreement was, perhaps, an improvident one for the defendant, but from the plaintiff’s point of view the stipulation as to delivery was a wise precaution, for otherwise the defendant by entering into agreements with its customers which fell short of an actual sale could easily have defeated the payment of royalties.

The question whether or not actual deliveries were made was fairly presented to the jury and we see no reason for disturbing their verdict.

The judgment is affirmed.