D. C. Hardy Implement Co. v. South Bend Iron Works
| Decision Date | 18 June 1895 |
| Citation | 129 Mo. 222,31 S.W. 599 |
| Parties | D. C. HARDY IMPLEMENT CO. v. SOUTH BEND IRON WORKS. |
| Court | Missouri Supreme Court |
Action by D. C. Hardy, doing business as the D. C. Hardy Implement Company, against the South Bend Iron Works. From a judgment for defendant, plaintiff brings error. Affirmed.
Action for breach of contract. Petition in two counts. Except as to matter of damages and of malice charged in the first, the counts are substantially the same, so that it will only be necessary to give the substance of the first count, which is to the effect: That Hardy & Mason, a firm composed of plaintiff and one Charles H. Mason, on the 30th of November, 1892, entered into a written contract with defendant, whereby said Hardy & Mason agreed to buy, and defendant agreed to sell and ship to them, on or before February 1, 1893, certain plows, which are described in the petition; that said machinery was to be kept for sale by said Hardy & Mason in their business as dealers in farm implements; that by the terms of said contract said plows were to be paid for by Hardy & Mason in the sum of about $250, with certain discounts thereon, on the 1st of July, 1893, with 10 per cent. additional discount off for cash, if paid before said time; that it was further stipulated in said contract that, in case said Hardy & Mason desired to purchase other and further plows, machinery, or farm implements during the year 1893, such purchases should be made subject to the conditions of the contract, to be paid for on the 20th of the month following such purchase, subject to 10 per cent. discount if paid at maturity; that it was further stipulated in said contract that defendant would not sell said plows, machinery, or farm implements, including the "Oliver Chilled Plows," to any other person or firm at Versailles or vicinity for the year 1893; that the firm of Hardy & Mason dissolved on the 1st of January, 1893, and Charles H. Mason withdrew from the firm, and retired from the business; and for a valuable consideration sold, transferred, and assigned to the plaintiff all of his interest in the contract with defendant, and that plaintiff continued the business under the name of the D. C. Hardy Implement Company; that after the execution of said contract by defendant "the said firm of Hardy & Mason and this plaintiff, relying upon the fulfillment and performance of same by defendant, and at the special instance and request of defendant, and at great cost to this plaintiff, advertised defendant's machinery." A breach of contract is then alleged by defendant's refusal to ship the goods, and further by its selling its implements to a rival firm of dealers in Versailles during 1893, etc. Defendant demurred — First, generally; and, second, "because the petition shows that the suit is brought upon a contract alleged to have been entered into by the defendant with the firm of Hardy & Mason, and assigned by them to plaintiff, whereby defendant was to sell goods to Hardy & Mason during the year 1893 upon credit, and to give them exclusive privilege of selling defendant's goods during said year at Versailles, Mo.; and said contract is not alleged to have been assigned to plaintiff with defendant's consent." On this demurrer the petition being adjudged insufficient in law, plaintiff declined to plead further, and, judgment going on the demurrer, plaintiff brought error.
John A. Blevins, for plaintiff in error. W. F. Quigley and Draffen & Williams, for defendant in error.
SHERWOOD, J. (after stating the facts).
Where, as here, an executory...
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