264 F. 470 (9th Cir. 1920), 3235, Knudsen v. Domestic Utilities Mfg. Co.

Docket Nº:3235.
Citation:264 F. 470
Case Date:April 05, 1920
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 470

264 F. 470 (9th Cir. 1920)




No. 3235.

United States Court of Appeals, Ninth Circuit.

April 5, 1920

Rehearing Denied May 17, 1920.

Robert L. Hubbard, of Los Angeles, Cal., for plaintiff in error.

Davis, Kemp & Post, R. W. Kemp, and Kemp & Clewett, all of Los Angeles, Cal., for defendants in error.

Page 471

The plaintiff in error entered into a contract with the Domestic Utilities Manufacturing Company, a corporation, hereinafter called 'the Company,' wherein, in consideration of $5,000 paid to the Company by the plaintiff, the latter sold to her as its agent 1,667 'vacuum clothes washers.' The contract provided that the plaintiff might sell said washers at retail at a price not less than $3.50 for each, and it gave her the right to make as many sales at wholesale as she could successfully solicit, upon contracts in every way identical with the contract between her and the Company, and it provided that those contracts might be for 50 washers for $150, 167 for $500, 334 for $1,000, 834 for $2,500, or 1,667 for $5,000, and that upon each sale of lots as so specified the plaintiff should receive commissions from the Company of approximately two-thirds of the said specified sums. The contract contained very numerous provisions which, for the purposes of this case need not be alluded to. It was executed on July 7, 1911.

On January 26, 1915, the plaintiff brought her action in the court below, setting up the execution of the contract, alleging that she entered upon the performance thereof, whereby she was put to large outlay and expense in traveling and otherwise establishing places for the sale of the Company's goods in various cities throughout the United States, spending large sums of money in so doing; that she paid to the Company large sums of money for a large number of clothes washers, and directed the Company to ship the same to various persons at various points, but that the washers were never delivered, and the Company failed and refused to perform its contract with the plaintiff, and refused to deliver to her or to ship to her order the 1,667 vacuum washers so bought by her in her contract; that the Company held back and refused and neglected to ship to her order, as required by the terms of the contract, more than 30,000 of vacuum clothes washers which she had sold; that she sold 36,000 of said washers, and the Company never delivered more than 4,000 thereof; that in order to carry out her contracts with customers she was compelled to and did establish manufactories and manufactured washers; and that in fact the Company was not endeavoring to manufacture washers to comply with its contract with her and other contract holders of the same class.

The complaint further alleged that the Company and the individual defendants conspired to cheat and swindle the plaintiff by their paper circulars and booklets and other literature, wherein they represented, and plaintiff was led to believe, that the Company was actually engaged in the manufacture and sale at wholesale and retail of vacuum clothes washers, etc., to its agents and their customers; that such statements and representations and pretenses were false, were sham and deceit, and worked a fraud upon the plaintiff...

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