Blackledge v. Puncture Proof Retread Co.

• Decision Date: 08 March 1921
• Docket Number: 33758
• Parties: E. E. BLACKLEDGE et al., Appellants, v. PUNCTURE PROOF RETREAD COMPANY et al., Appellees
• Court: Iowa Supreme Court

181 N.W. 662

190 Iowa 1303

E. E. BLACKLEDGE et al., Appellants, v. PUNCTURE PROOF RETREAD COMPANY et al., Appellees

No. 33758

Supreme Court of Iowa, Des Moines

March 8, 1921

Appeal from Marion District Court.--J. H. APPLEGATE, Judge.

ACTION by plaintiffs on two counts. On the first count, they claim to recover money paid to the defendant upon a contract which was afterwards abandoned by the defendant. In the second count, they claim damages for breach of an alleged oral contract, contemporaneous with the written contract set forth in their petition. There was a directed verdict for the defendant on the second count. The first count was submitted to the jury, and a verdict rendered for the plaintiffs. From the order directing verdict for the defendant on the second count, the plaintiffs appealed. Thereafter, the defendant appealed from the refusal of the court to direct a verdict in its favor upon the first count. The defendant appears in the record, therefore, as the appellee.

Affirmed.

Hammer & Tripp and W. H. Lyon, for appellants.

L. D Teter, for appellees.

EVANS C. J. WEAVER, PRESTON, and DE GRAFF, JJ., concur.

OPINION

EVANS, C. J.

I.

Plaintiff and defendant are respectively partnerships, the plaintiff being engaged in business at Monroe, Iowa, and the defendant being engaged in a like business at Pella, Iowa. The written contract entered into between them, as set forth in the petition, was as follows:

"Distributor's Contract.

"This contract, made and entered into this 20th day of March, 1918, by and between the Puncture Proof Retread Company, of Pella, Iowa, party of the first part, and Blackledge & Porter, of Monroe, Jasper County, Iowa, party of the second part, witnesseth:

"Whereas, the said party of the first part is the sole distributor for the United States for the 'Armstrong Chrome Leather Steel Studded Retreads'--a retread tube attached to used and worn tires, and

"Whereas, the second party is desirous of securing the sale of same in the territory hereinafter mentioned, the parties hereto have agreed as follows:

"First. That the said first party shall furnish the second party as many retreads as desired as long as the terms of this contract are complied with, present prices as follows:

Size

Price

30 x 3 1/2

$ 10.70

32 x 3 1/2

11.00

32 x 4

12.85

33 x 4

13.30

34 x 4

13.45

34 x 4 1/2

12.25

35 x 4 1/2

15.25

36 x 4 1/2

15.60

37 x 5

19.75

"Said prices being governed by the market on chrome leather, and subject to change in sympathy with the chrome leather market. All prices are F. O. B. Terms $ 1.00 cash payment on each retread contracted for; balance payable cash with order or C. O. D.

"Second. That for a valuable consideration and the agreement to purchase 1,000 retreads (assorted sizes) to be ordered and delivered as provided herein and a cash payment of $ 1,000.00 to them in hand paid by the said second party, which sum of $ 1,000.00 is to be applied as payment on the above-mentioned goods at the rate of one dollar ($ 1.00) on each retread, the said party of the first part agrees and does hereby grant unto the said second party the sole and exclusive sale of the said 'Armstrong Retreads' for this company in the following territory and no other: Jasper County, Iowa.

"Third. Said first party hereby agrees to forward all letters and orders for said retreads (in territory above specified) to the second party during the life of this contract. It shall be a breach of this contract for the party of the second part to knowingly sell this product in territory not specified herein.

"Fourth. That the party of the first part shall fill all orders for retreads, vulcanizing machines or liquid rubber within thirty days' time after receipt of the order, but not to be responsible for providential causes of delay, strikes or inability to procure material or workmen, the second party expressly agrees to make any claim respecting the above-named goods in writing to the first party within three days after receipt of such goods otherwise all claims not so made shall be considered waived.

"Fifth. That no agreement or representation or warranty of any kind is to be considered as being a part of this contract or any way binding on either party except as appears herein or such as shall be put in writing duly signed and attached hereto. That second party has, prior to signing this contract, seen and examined one of the retreads covered by this contract, its quality and workmanship and is satisfied with same.

"Sixth. In consideration of the fact that the territory hereby assigned is a valuable asset to the said first party, the said party of the second part agrees to order and pay the balance due on 25 retreads each thirty days thereafter, in order to continue this contract in force, and failure of said second party to do so shall ipso facto void and revoke this contract without recourse by either party.

"This contract shall remain in full force and effect for a period of five (5) years from date hereof, providing the terms are complied with."

The plaintiff pleaded not only the written contract, but pleaded also certain oral agreements and representations made by the defendant, contemporaneously with the written contract. The general character of such oral agreement and representations was that the subject-matter of the written contract was unqualifiedly guaranteed to stand certain...