American Trading Co. v. National Fiber and Insulation Co.
| Decision Date | 17 June 1920 |
| Citation | 111 A. 290,31 Del. 65 |
| Court | Delaware Superior Court |
| Parties | AMERICAN TRADING COMPANY v. NATIONAL FIBER AND INSULATION COMPANY |
Superior Court for New Castle County, March Term, 1920.
SUMS. CASE, No. 21, September Term, 1918.
Action by the American Trading Company against the National Fibre & Insulation Company. On demurrer to the amended declaration. Demurrer sustained.
This action was brought upon an agreement, made between the parties, set out in full in the declaration, and omitting the prices listed and the terms with regard to charges for cases is as follows:
This agreement, made and entered into this 7th day of May, 1915 by and between the National Fibre & Insulation Company of Yorklyn, Delaware, and the American Trading Company of New York, witnesseth:
It is understood that on material furnished by National Fibre & Insulation Company is guaranteed to be equal to the usual standard quality and subject to return at their expense in case it is not up to standard. No shipment, however, is to be returned until condemned by a committee consisting of a representative of the American Trading Company, a representative of the National Fibre & Insulation Company, who is to be selected by themselves or the American consul, and a third member to be appointed by these two. The expense of such arbitration to be borne according to the award of the arbitrators. It is understood that if shipments to the China, Japan, Philippine, Australian and South African markets are unsatisfactory that this contract is subject to cancellation.
CONDITIONS.
Fire, accident, or strike in the works of either party to this contract or on transportation lines rendering buyers unable to receive or sellers unable to deliver make this contract inoperative during repairs, rebuilding, or continuance of difficulties.
TERRITORY.
This contract is to apply to the markets of China, Japan, the Philippines, Australia, and South Africa, and the National Fibre & Insulation Company agree to refer all inquiries from these markets to the American Trading Company.
[Signed] National Fibre & Insulation Co.,
By S.E. FRANCIS.
Accepted: American Trading Company, by .
On the same day an additional stipulation with regard to said agreement, submitted in writing by the American Trading Company and A. O. Schoonmaker Company, was accepted by the National Fibre & Insulation Company, as follows:
1. The National Fibre & Insulation Company have an agreement with the A. O. Schoonmaker Company to refer all inquiries from the markets mentioned in said contract to the A. O. Schoonmaker Company, therefore, making effective such contract as an exclusive agency agreement, the A. O. Schoonmaker Company in turn having agreed to give us an undertaking of a similar nature.
2. That the protection against the decline in price that the National Fibre & Insulation Company agrees to give to the American Trading Company covers any decline in market prices of standard fibre up to the time of shipment of any goods that may be under order. * * *
3. Under the heading of "Terms" the charge for cases is eliminated.
It is averred in the amended declaration, in the first count, after bringing into court said agreement and setting it forth in full:
* * * That * * * said American Trading Company * * * at the special instance and request of the said National Fibre & Insulation Company bargained with the said National Fibre & Insulation Company to buy of it, the said National Fibre & Insulation Company, and the said National Fibre & Insulation Company then and there sold to the said American Trading Company, a large quantity of vulcanized fibre and insulating paper, to wit, the American Trading Company's entire consumption of vulcanized fibre and insulating papers covering a period of one year, from May 7, 1915, to May 7, 1916, upon the said certain terms and conditions contained in the said written contract dated May 7, 1915, and in consideration thereof and that the American Trading Company at the like special instance and request had then and there undertaken and faithfully promised the said National Fibre & Insulation Company to accept and receive the said vulcanized fibre and insulating papers, and to pay for the same at the rate or price agreed upon in the said contract above set out, it, the said National Fibre & Insulation Company, undertook to deliver the said vulcanized fibre and insulating papers to it, the said American Trading Company as aforesaid, and thereafter, on various occasions between the period of one year from May 7, 1915, to May 7, 1916, the said American Trading Company sent to the said National Fibre & Insulation Company numerous orders to be filled by the said National Fibre & Insulation Company according to its aforesaid agreement, which orders are known and designated by the following orders, to wit: * * * And Although the said time for the delivery of said vulcanized fibre and insulating papers mentioned in said order as aforesaid has long since elapsed, and the said American Trading Company has always been ready and willing to accept and receive said vulcanized fibre and insulating papers so ordered, and to pay for the same at the rate or price aforesaid, to wit, at the county aforesaid, yet the said National Fibre & Insulation Company, not regarding its said promises and undertakings, but contriving to deceive and defraud the said American Trading Company in this behalf, did not nor would not within the time aforesaid, or at any time afterwards, deliver the said vulcanized fibre and insulating papers contracted and agreed by the said defendant to be delivered and specified in said orders to said American Trading Company at the county aforesaid or elsewhere, as will appear from schedule designated as "A" hereto attached and made a part hereof, but wholly neglected and refused so to do, whereby the said American Trading Company hath lost and been deprived of divers great gains and profits which might and otherwise would have arisen and accrued to it from the delivery of said vulcanized fibre and insulating papers to wit, the American Trading Company aforesaid, to wit, at the county aforesaid. Wherefore, etc.
In the second count:
* * *That * * * said National Fibre & Insulation Company bargained for and agreed to buy of and from the said National Fibre & Insulation Company another large quantity, to wit, the American Trading Company's entire consumption of vulcanized fibre and insulating papers covering a period of one year from May 7, 1915, to May 7, 1916, upon the said certain terms and conditions contained in the said written contract dated May 7, 1915, which should be delivered for the American Trading Company within a reasonable time, to wit, at the city of New York in the county of New York and state of New York, and thereupon, in consideration of the premises and also in consideration that the said American Trading Company, at the like special instance and request of the said National Fibre & Insulation Company had then and there undertaken and promised the said National Fibre & Insulation Company to accept delivery at New York of the said vulcanized fibre and insulating papers, and to pay the said National Fibre & Insulation Company for the same at the rate aforesaid, the said National Fibre & Insulation Company on the day aforesaid, at the place aforesaid, undertook and then and there faithfully promised the said American Trading Company that it, the said National Fibre & Insulation Company, would, within a reasonable time then next following, deliver to it, the said American Trading Company, in manner aforesaid, the said quantity of vulcanized fibre and insulating papers, of such character as hereinabove mentioned, to be so carried and conveyed as aforesaid, and thereafter, on various occasions between the period of one year from May 7, 1915, to May 7, 1916, the said American Trading Company sent to the National Fibre & Insulation Company numerous orders to be filled by the said National Fibre & Insulation Company according to its aforesaid agreement, which orders are known and designated by the following numbers, to wit: * * * And although a reasonable time for this purpose has long since elapsed, and the said American Trading Company was always during that time ready and willing to have accepted delivery of said vulcanized fibre and insulating papers as aforesaid, and to have paid the said National Fibre & Insulation Company for the same at the rate hereinbefore set forth, to wit, at the county aforesaid, whereof the said National Fibre & Insulation Company then had notice, yet the said National Fibre & Insulation Company, not regarding, etc.
In the third count:
* * *In consideration that the said American Trading Company, at the like special instance and request of the said National Fibre & Insulation Company had then and there contracted and agreed with it to buy and purchase...
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