194 F. 324 (7th Cir. 1912), 1,765., Velie Motor Car Co. v. Kopmeier Motor Car Co.

Docket Nº:1,765.
Citation:194 F. 324
Party Name:VELIE MOTOR CAR CO. v. KOPMEIER MOTOR CAR CO.
Case Date:January 02, 1912
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
FREE EXCERPT

Page 324

194 F. 324 (7th Cir. 1912)

VELIE MOTOR CAR CO.

v.

KOPMEIER MOTOR CAR CO.

No. 1,765.

United States Court of Appeals, Seventh Circuit.

January 2, 1912

Page 325

[Copyrighted Material Omitted]

Page 326

[Copyrighted Material Omitted]

Page 327

[Copyrighted Material Omitted]

Page 328

Jackson B. Kemper, for plaintiff in error.

Henry V. Kane, for defendant in error.

Before BAKER, SEAMAN, and KOHLSAAT, Circuit Judges.

KOHLSAAT, Circuit Judge (after stating the

Page 329

facts as above).

Plaintiff contends that the contract is, in law, an agreement for the sale by plaintiff to defendant of 50 automobiles at an agreed price which plaintiff was willing to perform, and that by repudiating the contract defendant subjected itself to liability to respond as for a breach.

Defendant, on the other hand, contends that the contract is an executory agency contract, the consideration for which rests in mutual

Page 330

promises; that by reason of the option reserved by plaintiff to terminate it at its pleasure, defendant was entitled to a like option; 'and that,' in the language of the trial judge:

'This right to cancel the contract arbitrarily conferred upon the plaintiff destroys the mutuality, whether the contract be one of sale or agency; that until there has been some performance under the contract, it was nudum pactum and would not sustain the present action.'

In support of its contention that the contract was one of sale, plaintiff cites the following excerpts from said contract, viz.:

'In consideration of the above, it is understood and agreed that the Velie automobiles shall be invoiced to the party of the second part at the following net prices, f.o.b. Moline, Illinois' (giving same).

'Party of the second part agrees to keep at least one Velie automobile in stock for exhibition and demonstrating during the life of this agreement, and to order for shipment at least 50 before October 31, 1910.'

Also:

'The party of the first part agrees and does hereby extend to the party of the second part, the exclusive right of sale during the continuance of this contract for the Velie line of automobiles in the following territory:' (Some 21 counties in the state of Wisconsin.)

Plaintiff further contends that defendant held and enjoyed such exclusive right of sale in said territory from the time...

To continue reading

FREE SIGN UP