174 Iowa 132 | Iowa | 1916
On or about November 18, 1911, plaintiff and defendants had certain negotiations concerning the sale of Hudson automobiles, for which the defendants held an agency. The details of the oral negotiations are the subject of dispute, but it is agreed that, on the date named, they executed a certain written or printed ■ instrument. Whether this instrument constituted a complete contract by which alone the rights of the parties herein are to be determined
“1. The Dealer agrees to sell to the Subdealer, f. o. b. ears, at Detroit, Mich., sight draft against bill of lading, with exchange, unless paid for in advance by certified cheeks or currency, Hudson automobiles described in manufacturers’ catalogue, . . . for distribution within the following described territory: [Describing it.]
“5. Each automobile will be sold by the Dealer to the Subdealer at a discount of 15 per cent from the manufacturers’ current advertised list price and will be resold by the Subdealer at the manufacturers’ advertised list price only, nor shall the Subdealer, by rebates, allowances, donations, or any other means, evade the spirit of this clause.
“10. The Subdealer agrees to deposit with the Dealer the sum of $150.00 as a guarantee for the satisfactory performance of this agreement, said deposit to be returned to him with interest at the rate of 5 per cent per annum, upon the termination of this agreement, provided in case the Sub-dealer shall make default in any performance hereof, the Dealer may retain as much of said sum as shall be deemed reasonable indemnity for any loss or damages sustained.
“11. The Dealer also reserves the right to apply all or any part of the deposit money to offset parts, accounts, or transportation charges on parts or cars, or any or all other expenses incurred in the adjustment of claims or settlements.
“12. Subject to the conditions hereinbefore and hereinafter stated, the Subdealer hereby agrees to buy and the Dealer hereby agrees to sell to the Subdealer, f. o. b. Detroit, Mich., five new Hudson motor cars.
“13. The Subdealer agrees to accept delivery of ears according to the attached schedule, and to furnish detailed*134 specifications for same. If the Subdealer fails to furnish the Dealer with detail specifications 30 days before the 1st of the month, during which shipment is to be made, the Dealer reserves the right at his option to deduct such cars from the total allotment and to dispose of them as he sees fit.
“14. The Subdealer agrees hereby to maintain at all times at least one Hudson car for demonstrating purposes and to maintain a suitable salesroom and efficient shop for the care of Hudson cars at Pierson, Iowa.
“15. This agreement is contingent upon delays due to strikes, floods, accidents, or any other cause beyond the control of the manufacturers, whether occurring in the plant of the manufacturers, or in that of any concern from which the manufacturers purchase parts of their motor cars, and the shipments of Hudson cars above purchased are to be made as herein specified, subject to the prior orders of other dealers and as the business of the manufacturers will permit.
“16. It is mutually understood that this contract shall be terminated by limitations on July 1, 1912. It is further understood that this contract supersedes all previous agreements between the contracting parties.”
After the time limit mentioned in the contract had expired, plaintiff began this action at law to recover the sum of $150, which he alleges he deposited with defendants, who, upon due demand therefor, refuse to return it. As grounds for such recovery, he alleges that, upon solicitation by the defendants, he orally undertook to solicit orders for or make sales of Hudson cars for them in the territory described; that, under said agreement, he was not required or expected to purchase or to receive cars, except as might be necessary to complete sales to purchasers obtained by him. He further says that, such agreement having been made, defendants requested him to sign their printed form of contract and, upon his objection that he had not assumed any absolute obligation to purchase machines, the defendants explained and
Jury having been waived, the cause was tried to the court, which, upon consideration of all the evidence, dismissed both plaintiff’s claim and defendants’ counterclaim. Both parties have appealed, but plaintiff’s appeal being first perfected, he alone will be designated appellant.
It is to be observed, also, that the deposit in this ease was made under an express agreement that it should be returned subject only to the defendant’s right to apply the same, so far as might be necessary, to the payment of any debt or damages properly due them from plaintiff. By their answer and counterclaim, also, they concede that the deposit belongs to the plaintiff unless they establish their right to apply the same upon this claim for alleged loss of profits upon the five cars mentioned in the writing. Finding, as we do, that there was no valid or enforceable contract by the plaintiff to purchase said cars, it follows that defendants have no right of recovery upon their counterclaim; and, upon their own showing, plaintiff is entitled to recover the amount of his deposit, with interest.
We think the trial court erred in dismissing the plaintiff’s claim. There was no