C. W. Hull Company v. Westerfield
| Decision Date | 16 February 1922 |
| Docket Number | 21751 |
| Citation | 186 N.W. 992,107 Neb. 705 |
| Parties | C. W. HULL COMPANY, APPELLANT, v. CHARLES A. WESTERFIELD ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ARTHUR C WAKELEY, JUDGE. Affirmed.
AFFIRMED.
Brogan Ellick & Raymond and Harvey M. Johnson, for appellant.
B. N Robertson, Stewart, Perry & Stewart and L. R. Slonecker, contra.
Heard before MORRISSEY, C. J., ROSE, ALDRICH and FLANSBURG, JJ., BUTTON and COLBY, District Judges.
This was an action brought by appellant in the district court for Douglas county, in equity, to enjoin eight of the appellees, who were retail coal dealers, from prosecuting certain actions at law brought by each of them to recover for the alleged breach by appellant of contracts for the sale and delivery of Illinois coal during the season of 1916-1917. A temporary injunction was granted. The defendants filed separate answers and cross-petitions, setting up their alleged contracts and damages for breach thereof. One Robert Bates, the ninth appellee, intervened for the same purpose.
The equitable grounds alleged by appellant were that appellant was unable to fully perform its contracts with said appellees by reason of transportation disturbances, and that a court of equity should determine the extent to which, under the circumstances, it should have furnished the coal under its contracts with its various customers. The district court entered judgment in favor of each of the defendants and of said Robert Bates, the intervener. The trial court found generally against appellant and in favor of the eight cross-petitioners and the intervener, Robert Bates. From said findings and judgments the plaintiff appeals to this court.
It appears that the only question for this court to consider is the correctness of the findings and judgments of the lower court in favor of said defendants and intervener.
Each of said nine appellees sets forth in their several cross-petitions the execution of a contract to sell and ship on the part of the C. W. Hull Company, and to buy and receive on the part of the several appellees, certain quantities of Illinois coal during the period thereinafter stated, each contract being substantially in the same form and containing the following essential provisions, omitting the names of the purchasers, the quantity of coal agreed to be sold and purchased, and the time of shipment:
Then follows a schedule of different grades and qualities of coal at different prices, at different dates. In some of the contracts special conditions, not affecting the questions herein, are written in as follows: "Neither of the parties hereto shall be liable for failure to carry out the provisions of this contract, if prevented by fire, strikes, contingencies of transportation or other causes beyond their control." In the blank space of the several contracts, after the word "quality" and before the words "entire requirements," each appellee had his contract filled out for the amount of coal required, respectively, as follows:
The first contention of appellant is that the contract is invalid because the quantity which the company agrees to sell and ship and appellees agree to buy and receive is indefinite, and can be made definite only by the action of the buyers in so far as the contracts provide for furnishing to the appellees their entire requirements without definitely fixing the amount. It appears that the adjudicated cases are numerous in sustaining and enforcing contracts like those involved in this case.
In the actions of appellees Heck, Smith Brothers, Bates, Van Buskirk, Havelock Lumber & Coal Company, Farmers Elevator Company of Bagley, Iowa, and the Farmers Elevator Company of Scranton, Iowa, the number of cars is specially mentioned, four of them definitely fixed and in the others approximately in the contracts set out in the respective petitions. In the case of Daykin Lumber Company, the appellant was to sell and ship and the appellee to buy all of its requirements of Illinois coal, and in the case of Charles A. Westerfield two-thirds of his requirements of Illinois coal. The language appears to be sufficiently definite and the language used is not ambiguous or reasonably capable of two interpretations. The appellees were retail coal dealers and the arrangement was to purchase their season's supply of Illinois coal at definite prices, to be shipped upon reasonable notice, within certain limited time. The adjudicated cases are quite uniform in sustaining contracts of this character, and the reasoning in the deciding cases is enlightening and worthy of consideration.
In Scott v. Stevenson Co., 130 Minn. 151, 160, 153 N.W. 316, the court, in discussing a contract where a retail merchant purchased his requirements of a certain kind of coats, used this language: "If the buyer has an established business whose requirements may be estimated approximately, the contract is not void either for uncertainty or want of mutuality, but is valid and may be enforced to the extent of the ordinary requirements of such business when carried on and conducted in the manner contemplated by the parties at the time of making such contract."
In the case of Coal Blast Transportation Co. v. Kansas City Bolt & Nut Co., 114 F. 77, Judge Sanborn, in the opinion, said: "An accepted offer to furnish or deliver such articles of personal property as shall be needed, required, or consumed by the established business of the acceptor during a limited time is binding and may be enforced, because it contains the implied agreement of the acceptor to purchase all the articles that shall be required in conducting his business during this time from the party who makes the offer."
Appellant in its contract agreed "to sell and ship" and the purchaser agreed "to buy and receive" in case of appellee Daykin Lumber Company, its entire requirement, and of appellee Westerfield "two-thirds of" his entire requirement. This is much more definite, certain and fixed than in the cases cited.
The second contention on behalf of appellant is that, even where the number of cars is definitely stated in the contract, yet such contract provides that such shipment shall be made from either or both mines, Shiloh or Trenton, at the option of the purchaser, and that until this option is exercised there is no mutuality and a shipment can never be made, and that this feature makes such contract void and unenforceable.
It does not appear to us that this objection to the contract should be given any considerable weight. Because an option is given to the purchaser to purchase a certain kind of coal to be shipped from one mine or a certain kind of coal to be shipped from another mine, when the seller has agreed to ship and sell and the buyer has agreed to receive and buy his requirements or a certain amount of either kind, there does not seem to be any lack of mutuality. These are simply incidents of minor matters like the option to have the goods come over a particular line of railroad, and do not include any of the essentials of a lack of mutuality. The well-considered adjudicated cases from the courts of last resort seem to emphasize the fact that agreements of this character are binding and valid, are mutual, and not unilateral. They are not uncommon between manufacturer and wholesaler or between wholesaler and retailer.
In Lima Locomotive & Machine Co. v. National Steel Castings Co., 155 F. 77, the United States circuit court of appeals upheld a contract of similar character.
The third contention of appellant is that each of these contracts is void because of a provision contained that the appellee "is at liberty to buy other Illinois coal of similar quality, if able to do so at lower prices than those provided in this contract." This provision of the contract is plainly in the nature of a guaranty by appellant that the prices of coal shall not go below those mentioned in the contract, and that, if they do, then the buyer is at liberty, unless the seller reduces his prices, to purchase elsewhere at the reduced prices. A large majority of the adjudicated cases hold that this provision does not make a contract unilateral or destroy its mutuality.
In 23 R. C. L. 1270, sec. 86, it is said: ...
To continue reading
Request your trial