Gile v. Inter-State Motor Car Co.
| Decision Date | 20 February 1914 |
| Citation | 27 N.D. 108,145 N.W. 732 |
| Parties | GILE v. INTER-STATE MOTOR CAR CO. |
| Court | North Dakota Supreme Court |
Defendant, a distributor of Inter-State Automobiles for the state of North Dakota, entered into a written contract with plaintiff by which the latter agreed to purchase and pay for at least 50 cars at specified dates during the life of the contract, and to deposit with defendant the sum of $1,250, being $25 on each car to be applied by defendant on the purchase price of each when sold. In consideration thereof defendant allotted to plaintiff during the life of the contract, nearly one year, the exclusive right to solicit purchasers of and to sell such cars in ten designated counties of the state, and obligated itself to furnish cars to plaintiff when ordered at certain specified discounts from list prices. Plaintiff promised to diligently and faithfully advertise such cars in and to work such territory during the life of such contract and to do certain other things tending to promote and to effectuate the objects of the contract. Plaintiff advanced to defendant the deposit aforesaid and entered upon the performance of the agreement. During the entire life of the contract both parties in good faith attempted to fulfill the same. Defendant was ready, able, and willing to perform on its part, but plaintiff did not succeed in making any sales during the entire period, and as a consequence was unable to and did not take and pay for any of such cars. Shortly after the termination of such contract by lapse of the period designated therein for its existence, plaintiff brought this action to recover such deposit as for money had and received by defendant to his use, claiming a right to the repayment thereof upon the ground that the consideration had wholly failed. Held, for reasons stated in the opinion, that he cannot recover.
In order to maintain such action it is incumbent on plaintiff to establish facts from which the law raises an implied promise on defendant's part to repay such money, and such a promise will never be implied except where it appears that in equity and good conscience defendant ought not to be permitted to retain the same.
Whether the contract lacked mutuality and was therefore voidable and unenforceable while it remained wholly executory is not controlling. The contract was not illegal or unlawful, and, the parties having acted under it during the entire period of its existence, it cannot, so far as executed, be questioned, and it must to such extent control and measure the rights of the respective parties.
The stipulation in the contract authorizing the retention by defendant of such deposit as liquidated damages for plaintiff's breach thereof held not in the nature of a penalty, because from the nature of the case it would be extremely difficult, if not impossible, to fix the actual damages.
Plaintiff having breached the contract while defendant performed the same as far as plaintiff permitted it to do so, the former cannot recover such deposit as for money had and received.
Defendant, by his answer and proof, did not seek to recover damages against the plaintiff under the contract, but he merely pleaded and proved such actual damages, as far as they were susceptible of proof, as defensive matter tending to show a want of equity in plaintiff's claim.
Appeal from District Court, Nelson County; C. F. Templeton, Judge.
Action by W. D. Gile against the Inter-State Motor Car Company, a corporation. From an order granting a new trial, defendant appeals. Reversed.
Scott Rex, of Grand Forks, for appellant. Frich & Kelly, of Lakota, for respondent.
On October 8, 1910, the parties entered into the following written agreement:
“This agreement, made this 8th day of October, A. D. 1910, at Lakota, N. D., between the Inter-State Motor Car Co., party of the first part (hereinafter known as the distributors), and W. D. Gile, party of the second part (hereinafter known as the dealer), witnesseth:
(1) That the distributors hereby grant unto said dealer the right to sell Inter-State cars in the following described territory, to-wit: Williams, McKenzie, Billings, Bowman, Burke, Montraile, Dunn, Stark, Hettinger and Adams counties. (The Inter-State Motor Car Co. reserves the right to cancel any of the above counties if no agency appointed on or before June 1st, 1911, by the dealer.)
(2) The distributors hereby agree to sell to the dealer Inter-State cars with standard catalogue equipment at a discount of 20 per cent. from list price thereof. The price of Inter-State cars, in standard ‘Touring,’ ‘Roadster’ or ‘Demi-Tonneau’ types, with full lamp equipment, magneto, horn and tools, shall be $1,750 f. o. b. factory at Muncie, Indiana.
(3) The distributors reserve the right to change all prices and discounts mentioned in this contract, upon two weeks' notice in writing, duly mailed to the dealer.
(4) No order for automobiles, automobile parts, or attachments, shall be binding upon said distributors unless said order shall clearly specify kinds and styles, dates of shipment, etc., and unless it is accepted by the distributor at least 30 days prior to date of delivery, and all such orders and acceptances shall be in writing and subject to delays caused by strikes, fires or other causes beyond manufacturer's control.
(5) The failure of the distributors to enforce at any time any of the provisions of this agreement or to exercise any option which is herein provided or to require at any time performance by the dealer of any of the provisions hereof, shall in no way be construed to be a waiver thereof, nor in any way affect the validity of this contract or any part thereof, or the right of the distributors to hereafter enforce the same.
(6) The distributors shall not be liable for any failure of performance on its part when said failure of performance shall be due to fire, strike, insurrection or any other cause beyond its control.
(7) It is expressly understood and agreed that the title to each and every automobile, and to all automobile parts furnished to said dealer, under the terms of this agreement, shall be and remain in the distributors' name until same is paid for in full, in cash.
(8) It is further agreed that the distributors shall not be liable to the dealer for any loss or damage to automobiles or other goods furnished under this contract, while the same are in the custody and possession of any railroad, express company or other common carrier in transit.
(9) All claims on account of material must be made by the dealer within sixty days after the delivery of automobiles, etc., to the dealer's customers, and upon any such material being submitted to the manufacturer properly tagged, giving the motor number of the automobile from which the same was taken, the name and address of the owner, and the date of sale when new, and the date when said part was taken from said automobile, or gratuitous exchange of part was made, and such other information as may from time to time be prescribed by the manufacturer, manufacturer agrees to replace such parts gratis, if, upon examination of the same it shall, in the opinion of the manufacturer, be found to be defective in workmanship and material; the freight or express charges on said part so returned to the manufacturer for credit or replacement must in all cases be prepaid by the dealer; and all claims on account of defective tires, rims, coils, radiators and other equipment not manufactured by the Inter-State Automobile Co., must be made by said dealer to the respective manufacturers of such tires, rims, coils, radiators and other equipment.
(10) The dealer hereby orders and agrees to take and pay for not less than fifty Inter-State cars of the types and on the dates as hereinafter indicated:
+------------------+
¦Touring Car. ¦
+------------------¦
¦Jan. ¦1911¦Three ¦
+-----+----+-------¦
¦Feb. ¦1911¦Three ¦
+-----+----+-------¦
¦Mar. ¦1911¦Three ¦
+-----+----+-------¦
¦Apr. ¦1911¦Six ¦
+-----+----+-------¦
¦May ¦1911¦Nine ¦
+-----+----+-------¦
¦June,¦1911¦Twelve ¦
+-----+----+-------¦
¦July,¦1911¦Eight ¦
+-----+----+-------¦
¦Sep. ¦1911¦ ¦
+-----+----+-------¦
¦Oct. ¦1911¦ ¦
+-----+----+-------¦
¦Nov. ¦1910¦Three ¦
+-----+----+-------¦
¦Dec. ¦1910¦Three ¦
+------------------+
(11) The dealer has deposited with the distributors the sum of $1,250.00 to apply at the rate of $25.00 per car on the cars ordered as above; said sum will be credited by the distributors to the dealer, and will be repaid as cars are delivered and paid for, at the same rate, except that any or all of said deposit may, at the option of the distributor, be credited against any parts or open account due the distributors from the dealer, and the balance, if any, will be credited pro rata, on each car taken. The balance of the price of each, over and above the amount prepaid and credited against it as aforesaid, shall be paid at the time of shipment or on presentation of sight draft with bill of lading attached.
(12) The dealer further agrees:
(a) That he will maintain at all times the manufacturer's list price for automobiles and parts, and that he will not by rebates, allowances, donations or by other means evade the spirit of this clause.
(b) That at the end of each week the dealer will report to the distributors the names and addresses of all purchasers of Inter-State cars, together with factory number of same.
(c) That he will faithfully represent and advertise such automobiles; make all reasonable efforts to promote and increase the sales thereof; keep in stock at least one of Inter-State manufacture, for the sole purpose of demonstrating and exhibiting to prospective purchasers, and maintain the same in good order and repair.
(d) That he will respond promptly to all inquiries respecting the purchase of said automobiles; keep the distributors fully...
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