216 F. 892 | 8th Cir. | 1914
The plaintiff sought to recover damages for the breach of two contracts, one executed on November 20, 1907, and the other on December 2, 1908; but as the court below held that there could be no recovery on the first contract, and the cause was tried solely for the alleged breach of the second contract, the first need not be considered.
“This agreement witnesseth, that the Multiscope & Film .Company, a corporation of Wisconsin, first party, has sold and assigned, and by these presents does grant, bargain, sell and assign, to Conley Camera Company, a corporation of Minnesota, second party, for and in consideration of the sum of five hundred dollars ($500.00), and an order for not to exceed nine thousand dollars ($9,000) worth of photographic wooden ware, which second party agrees to pay for within twenty days from date of invoice and acceptance, the receipt of which is hereby acknowledged, all those letters patent of the United States of America, title to which is now in said first party, granted for improvements in panoramic cameras to various parties, being identified as letters patent of the United States of America #567,559, #671,154, #773,048 and #778,394, and all other letters patent or right to letters patent issued or pending for improvements in panoramic cameras to or in which said first party may have any right, title or interest; also all those goods, merchandise, tools, chattels and dies described in a separate invoice of the same bearing even date herewith, hereto attached and marked ‘Exhibit A.’
“In consideration of the sale of said goods, merchandise, tools, chattels and dies by first party to second party, second party agrees that it will continue to sell to first party cameras (manufactured) under said letters patent and known as the ‘Al-Vista’ panoramic film cameras, at the same prices which first party is now paying to second party for such cameras, subject to a pro rata advance in case of an advance in cost of materials or labor over present prices, irrespective of quantities.
“This agreement not to be construed as intending thát second party shall sell only to first party, it being the intention that said second party may sell such cameras without restriction, except that it is hereby expressly agreed that, so long as first party shall continue to purchase such cameras from second party, neither first party nor second party shall give or allow in any way greater discounts from the list price of such cameras than the following:
“To the jobbing trade 40 per cent, and 25 per cent., equivalent to 55 per cent. ,
“To retail dealers 40 per cent.
“To consumer or user 20 per cent.
“Above discounts shall not bind party of the first part on sale of such cameras known as 5-F style which it now has on hand.
“List prices of various styles of said cameras shall from time to time be established by party of second part, not to exceed once each year, by mutual consent. It is further agreed that this agreement as to discount shall not apply to cameras sold to Sears, Roebuck & Co., and that there shall be no restriction as to the prices at which said cameras may be sold to Sears, Roebuck & Co.
. “It is further understood and agreed that in ease first party shall at any time give or allow, directly or indirectly, to any purchaser from it of cameras (sold to it by second party, and discounts, rebates, premiums, bonus or dedue-' tions in price which in the aggregate shall reduce the price to such purchaser to a less amount than the amount above agreed upon, or in case first party shall sell its business or shall cease doing business at any time, or in case the holders of a majority of the shares of stock of first party shall sell or dispose of a majority of said stock, then this agreement as to the sale of cameras by second party to first party shall cease and determine.
“Further agreed and understood that this contract is not assignable on party of the first part, but that it shall bind the successor and assigns of the party of the second part.
“Dated this 2d day of December, 1908.
“Multiscope & Film Co.
“By Leonard J. Smith, Pres.
“Conley Camera Company,
“By Kerry Conley.”
It is further alleged that after the execution of the contract the pitintiff complied in all respects with the terms thereof, but that the
The answer of the defendant admits the execution of the contract and sets up as a defense that the “Al-Vista” cameras made under the patents of the plaintiff were imperfect and incomplete, and could not be successfully operated, used, or sold. It also denies that the plaintiff has performed its part of the contract, and also contains a general denial.
There was a trial and a verdict in favor of the plaintiff for the damages sustained, but the damages were confined by the court to the profits the plaintiff would have made on the orders it actually received for these cameras, but which it could not fill owing to defendant’s refusal to furnish them.
“If the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may strike it out on motion, or require it to bo amended.”
The defendant made no motion, before the trial, to require the complaint to be made more definite and certain, and it is too late to raise it in the appellate court. Barker v. Foster, 29 Minn. 166, 12 N. W. 460; Truesdell v. Hull, 35 Minn. 468, 29 N. W. 72.
“As to the objection that there is no mutuality in the contract, and therefore it cannot be enforced, the Circuit Court says in its opinion: ‘As to the objection on the ground of the want of mutuality in the contract, I think it of little force. The respondent has been paid for the privilege that is now claimed. The consideration, as I have heretofore shown, was ample; and,*896 when a party has received payment for a privilege, I do not think it can resist the enforcement of that privilege on the mere ground that it cannot compel the other party to continue in its enjoyment’ We concur in this view.”
Option contracts, whereby a party obligates himself, for a valuable consideration, to convey certain property, are of everyday occurrence. In none of them is there any obligation on the part of the would-be purchaser to make the purchase, that being discretionary with the party to buy. But the obligor, having received a valuable consideration, cannot be heard to defeat the contract because the obligations are not mutual, as is the case where the sole consideration is a promise for a promise. Pomeroy on Sp. Per. § 169; Willard v. Tayloe, 8 Wall. 557, 19 F. Ed. 501; Watts v. Kellar, 56 Fed. 1, 4, 5 C. C. A. 394, 397; Marthinson v. King, 150 Fed. 48, 51, 82 C. C. A. 360; Hoogendorn v. Daniel, 178 Fed. 765, 102 C. C. A. 213.
The fact that there is no limit to the time within which the contract is to cease does not vitiate it, in view of the facts here existing. In Pierce v. Tennessee Coal & Iron R. R. Co., 173 U. S. 1, 19 Sup. Ct. 335, 43 F. Ed. 591, the railroad company had obligated itself, for a valuable consideration, to give the plaintiff employment at such work as he could do at a certain salary per month, without specifying the length of time the employment was to continue. It thereafter discharged him. It was claimed that the contract was for a hiring from month to month; otherwise, being for an indefinite time, it was void. But the court construed it as being a contract of employment as long as he was unable to do full work and therefore the company was liable for a'breach thereof when it discharged the plaintiff while he was still unable to do full work. The Supreme Court of Alabama, in construing the same contract, held that:
“The contract is sufficiently definite as to time, and bound tbe defendant to its performance so long as tbe plaintiff should be disabled by reason of tbe injuries be received, which, under tbe averment that he was permanently disabled, will be for life.”
In that opinion the Supreme Court of the United States concurred. 173 U. S. 10, 19 Sup. Ct. 335, 43 F. Ed. 591. To the same effect is Smith v. Duluth, etc., Ry. Co., 60 Minn. 330, 62 N. W. 392.
In McKell v. Chesapeake & O. R. R. Co., 175 Fed. 321, 330, 99 C. C. A. 109, 118 (20 Ann. Cas. 1097), the court held that such a contract was valid, saying:
“A more conclusive answer is that it should have been considered by the parties when they made their agreement whether it would impose too great a hardship upon them.”
•‘There is an allegation that the cameras were imperfect, inferior, and incomplete, and could not be successfully operated, used, or sold, and that, in order for defendant to manufacture and successfully dispose of said cameras to the trade, it became necessary for the defendant to make many changes and improvements in the construction of said cameras. That might have been necessary in order to sell to the trade other than the plaintiff; but, so far as the plaintiff was concerned, it was bound to take the cameras as they were made at first.”
If the cameras purchased by the plaintiff were imperfect, the loss would fall upon it, and not on the defendant.
It is next claimed that the court erred in admitting the evidence offered by the plaintiff as to the measure of damages. The contention is that it was unsatisfactory, and that the books of the plaintiff ought to have been introduced, to show the exact cost of handling them for the trade. If the plaintiff’s testimony as to the expenses of sale was unsatisfactory, the defendant had an opportunity to introduce evidence to rebut it. Nor was it necessary for the plaintiff to testify from, his books as to the measure of damages. It appears from the record that the books of the plaintiff were in court at the trial, or, if not there, they could have been procured by a subnoena duces tecum, and defendant could have had them introduced, or, on cross-examination of plaintiff’s witnesses on that point, have had them refer to the books. The testimony of plaintiff as to the damages was limited by the trial court to the profits on orders for the “Al-Vista” cameras which it had actually received before the' institution of this action, hut could not fill owing to defendant’s refusal to furnish them, as it had agreed to do by its contract of December 2, 1908, less the expense connected with the sales. The defendant was permitted to show on cross-examination that ihere were overhead expenses, which had not been included by plaintiff’s witnesses in estimating the expense of sale, and what these expenses were. It was also permitted, on cross-examination of plain
The record fails to show any error prejudicial to the defendant, and the judgment is therefore affirmed.
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