278 F. 50 | 7th Cir. | 1922
(after stating the facts as abone).
“It is understood that il the tonnages are not specified as called for in this contract they shall be automatically canceled.”
Plaintiff in error insists that this left it entirely optional with defendant in error to take or not to take any or alb of the tonnage, and, no consideration appearing' for the agreements to sell, neither party became obligated by the contracts. Contracts with provisions more or less similar, but involving substantially the same principle, have been by this court in a number of cases held to be Unenforceable. In American Cotton Oil v. Kirk, 68 Fed. 791, 15 C. C. A. 540, the memorandum of sale of 10,000 barrels of oil provided “deliveries to be made per week as Kirk & Co. (buyers) desire.” Passing on the validity of this contract, the court said:
“Suppose Kirie & Co. had not desired and had not ordered any such Quantities as would require 100 years to complete the delivery — is there any way open to the defendant to put plaintiffs in default? We think not, and that there is no mutuality of promises for the sale of a definite or ascertainable quantity of oil.”
Oakland Motor Car Co. v. Indiana Auto Co., 201 Fed. 499, 121 C. C. A. 319, dealt with an agreement for sale of automobiles, wherein it was provided that no order shall be binding unless accepted by the manufacturer at least 30 days prior to date of delivery, and for cancellation by either party for just cause. There was no question but that the provision for cancellation alone would have rendered the contract unenforceable. But it was contended that the qualification “for just cause” saved the contract from the operation of the rule. The court held that the addition of these words did not exempt the contract from the application of the rule requiring the mutuality of obligation as a necessary element of a binding contract for future sale and delivery. To like general effect are Crane v. Crane & Co., 105 Fed. 869, 45 C. C. A. 96, Velie Motor Car Co. v. Kopmeier Motor Car Co., 194 Fed. 324, 114 C. C. A. 284, and Tweedie Trading Co. v. Parlin & Orendorff Co., 204 Fed. 50, 122 C. C. A. 364, all decided by this court. See, also, Pocatello v. Fidelity, etc., Co., 267 Fed. 181 (9 C. C. A.), and Cold Blast, etc., Co. v. Kansas City, etc., Co., 114 Fed. 77, 52 C. C. A. 25, 57 L. R. A. 696.
This was evidently so regarded by the parties themselves, since,
This was not an acceptance of any of the specifications or orders, and the fact that it disputed the right to supply these widths, rather than to assert the invalidity of the contracts, did not waive or bar its
There appears here no such. situation as was present where contracts seemingly somewhat similar have been upheld, such as contracts to supply a buyer’s entire season’s requirements, to take a manufacturer’s entire output, to sell to the buyer alone all the seller may . acquire of a particular article for a definite time. But the contracts here left the buyer with the unqualified right', and with entire impunity, to cancel the contracted tonnage from month to month until at the end of the time fixed none of it remained; both parties being free to buy or sell elsewhere as they saw fit.
These views make it unnecessary to consider the question whether under the contracts widths beyond 6 inches were contemplated, and whether there was error in the admission of seller’s handbook, and of conversations of its alleged agents respecting the handbook, and the different dimensions of materials which might be specified under the contracts.
Concluding, as we do, that the contracts are unenforceable, the judgment is reversed, and the cause reminded for further proceedings in consonance - herewith.