Carter-Crume Co. v. Peurrung

Decision Date12 February 1900
Docket Number704.
Citation99 F. 888
PartiesCARTER-CRUME CO. v. PEURRUNG.
CourtU.S. Court of Appeals — Sixth Circuit

This is a writ of error to review a judgment in favor of Joseph P Peurrung, as the assignee of a contract of the firm of Peurrung Bros. & Co., against the Carter-Crume Company for $4,977.50. By the contract, the Carter-Crume Company agreed to pay Peurrung Bros. & Co. $3,000 per annum for the term of 3 years and 6 1/2 months, in monthly installments of $250, on the 15th day of each month, in consideration of the release by Peurrung Bros. & Co. of all their rights under a contract previously made by them with Tower & Matthews, of Indiana, by which Tower & Matthews had bound themselves to sell, at a certain price, their entire output of wooden wire-end dishes for a period of two years or more. The contract in suit provided that it might be annulled by 90 days' written notice, on the 1st day of March of any year. By other clauses of the contract, it was stipulated that Peurrung Bros. & Co. might buy dishes from the Carter-Crume Company at certain prices, but there was no stipulation binding Peurrung Bros. &amp Co. to buy any dishes whatever. By the last clause of the contract, it was agreed that Peurrung Bros. & Co. should not purchase wire-end dishes from anybody but the Carter-Crume Company, and should not allow a customer any part of the discount received from it. In a prior suit upon the same contract, by the same plaintiff against the same defendant, a recovery was had for $3,151.50, which included all the installments due on the contract, down to and including the installment due on September 14, 1896. 30 C.C.A. 174, 86 F 439. The present suit was for the installments due thereafter, beginning with that of October 15, 1896. The answer denied that the plaintiff was the bona fide assignee of the contract or the owner of the rights arising under it. For a second defense, the defendant set up that it had annulled the contract on the 20th of September, 1895, in accordance with the right reserved to it under the contract. The third defense of the defendant was as follows '(3) Further answering, this defendant says that said contract of August 14, 1894, was an entire and indivisible contract; that the consideration to the defendant was an entire and indivisible consideration; and that on September 20, 1895, this defendant notified said Peurrung Brothers &amp Co., in writing, of the refusal by said defendant to further perform said contract, and the covenant on the part of defendant to pay said Peurrung Brothers & Co., or said plaintiff, any sum or sums under said contract was thereby broken, and said notice was then and there given to said Peurrung Brothers & Co. of the breach by said defendant of said covenant, which was an entire and indivisible covenant; and thereafter, on the 29th day of September, 1896, said plaintiff, Joseph P. Peurrung brought suit against this defendant in the United States circuit court for the Southern district of Ohio, Western division, being cause numbered 4,954 upon the docket of said court, asking judgment for damages against this defendant for the breach by defendant of said covenant, and in said cause such proceedings were had as that on April 3, 1897, a judgment was rendered in favor of said plaintiff, Joseph P. Peurrung, who was plaintiff in said cause No. 4,954, and is the plaintiff in the above-entitled cause, which judgment has been paid and satisfied by this defendant; and this defendant says that said judgment in said cause No. 4,954 was for damages for the breach of the same covenant and contract alleged in the petition in this cause, and was a merger of any and all claim for damages under said contract, including the claim for damages alleged in the plaintiff's petition herein, and that thereby said plaintiff is estopped to claim against this defendant any further damages for the breach of said entire and indivisible covenant contained in said contract of August 14, 1894, it being the same contract which was set forth and sued upon in said cause No. 4,954; and covered in this cause was, if due at all, due and properly and by law recoverable and included in the judgment in said prior cause between the same parties, No. 4,954, on April 3, 1897, the date of said judgment in said prior cause; that in law the entire damages and claim sued for in this action were included and merged in the damages and judgment in said prior cause, for the breach of the said contract and covenant, which is sued upon in said cause No. 4,954, which is the same entire and indivisible covenant and contract sued upon in this cause. ' For the fourth defense, the defendant charged that the contract sued on was a part of a plan to which Peurrung Bros. & Co. were parties, and by which the Carter-Crume Company sought to obtain a monopoly of the wire-end wooden butter-dish trade, and to raise the prices therefor; that the contract was therefore illegal, contrary to public policy, and void, as in restraint of trade, preventing competition, fixing and enhancing prices, and tending to create a monopoly. To the second defense the plaintiff replied that the same defense had been pleaded in the prior suit, and had been adjudged against the defendant. The reply to the third defense was as follows: 'Plaintiff denies that the said contract was an entire and indivisible contract, and he denies that in said cause No. 4,954 he sued for damages for breach of covenant and contract. Plaintiff avers that under said contract the defendant was to make to plaintiff certain monthly payments that became due and were made payable monthly, and in said cause the plaintiff sued for such monthly payments as were then due and unpaid, and he recovered a judgment only for the same, with interest calculated monthly on such monthly payments so becoming due, as the record of said cause will show; therefore the plaintiff denies the allegations contained in the third defense set out by the defendant. ' In their...

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11 cases
  • Allen v. Clark, 8158Y.
    • United States
    • U.S. District Court — Southern District of California
    • March 29, 1938
    ...it everywhere. U. S. ex rel. Texas Portland Cement Co. v. McCord, 1914, 233 U.S. 157, 34 S.Ct. 550, 58 L.Ed. 893; Carter-Crume Co. v. Peurrung, 6 Cir., 1900, 99 F. 888; Baltimore & O. Railroad Co. v. McLaughlin, 6 Cir., 1896, 73 F. 519; Salyers et al. v. United States, 8 Cir., 1919, 257 F. ......
  • Jenkins v. Pullman Co.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 19, 1938
    ...Bison State Bank v. Billington, 5 Cir., 228 F. 116, 117; Baltimore & O. R. Co. v. McLaughlin, 6 Cir., 73 F. 519, 521; Carter-Crume Co. v. Peurrung, 6 Cir., 99 F. 888, 890; Bowden v. Burnham, 8 Cir., 59 F. 752, 754; Carnegie, Phipps & Co. v. Hulbert, 8 Cir., 70 F. 209, 218; Goodman v. City o......
  • Continental & Commercial Trust & Savings Bank v. North Platte Valley Irr. Co.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • January 4, 1915
    ... ... commencement of a suit. Humane Bit Co. v. Barnet ... (C.C.) 117 F. 316; Carter v. Peurrung (C.C.A ... 6) 99 F. 888, 40 C.C.A. 150; Flower v. MacGinniss ... (C.C.A. 2) 112 F. 377, 50 C.C.A. 291; Farmers' ... Loan Co. v. Railway, 177 ... ...
  • United States v. Worley
    • United States
    • U.S. Supreme Court
    • April 14, 1930
    ...in respect of such installments, and the judgment should not include them. Hamlin, Hale & Co. v. Race, 78 Ill. 422; Carter-Crume Co. v. Peurrung (C. C. A.) 99 F. 888, 890. Section 514, tit. 38, U. S. C.1 (38 USCA § 514), provides that, if the designated beneficiary does not survive the insu......
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