110 F. 107 | U.S. Circuit Court for the District of Southern Ohio | 1899
On August 14, 1894, Peurrung Bros. & Co. and the Carter-Crume Company entered into an agreement by the terms of which Peurrung Bros. & Co. agreed to waive all claim to and rights under a certain contract between Peurrung Bros. & Co. and Tower & Matthews for the manufacture and sale of wooden butter dishes; and the Carter-Crume Company, in consideration thereof, agreed to pay Peurrung Bros. & Co. $3,000 per annum, for the term of 3 years and 6J months, in monthly installments of $250 on the 15th day of each month: Among other things, the contract further provided that the Carter-Crume Company should sell Peurrung Bros. & Co. 1,500,000 wooden dishes from the factory of Tower & Matthews at certain prices, and also sell them wire end dishes ‘ with certain favorable discounts from the market price, reserving the right to ship the dishes from the factory nearest to destination; and, in consideration of the discount allowed and other valuable considerations, Peurrung Bros. & Co. agreed not to purchase wire end dishes from any other firm or corporation, and not to give or allow to any customer any part of the discount allowed. And it was further provided that as the agree
The case is now presented to the court upon two motions: First, .a motion for a new trial, which, without discussion, is overruled; second, a motion for judgment non obstante veredicto. This latter motion is predicated upon the third defense of the answer, — one of the defenses which was withdrawn from the consideration of the jury. The claim made in support of the motion is that the contract sued on is entire and indivisible, and that the judgment in the former case is a "bar to a recovery in this case. It is argued that the letter of the Carter-Crume ■ Company of September 20, 1895, to Peurrung Bros. & Co., was a repudiation of the contract, — a total .abandonment or breach of the contract on,the part of the Carter-'Crume Company, — such as (1) required Peurrung Bros. & Co. to treat their claim against the Carter-Crume Company as a “single ■cause of action upon the contract,” and at once bring an action for ■.the entire amount claimed, whether due or not (Suth. Dam. § 108); ■or (2) gave them an election either to pursue that course, or to 'treat the contract as subsisting, and wait until all the unpaid installments became due, and sue for the entire amount. To support this
In this case the Carter-Crume Company repudiated the contract, but the plaintiff chose to keep it alive. He never replied to the letter of September 20, 1895, from the Carter-Crume Company re