Gile v. Interstate Motor Car Company, a Corporation

• Decision Date: 13 February 1914
• Court: North Dakota Supreme Court

145 N.W. 732

27 N.D. 108

W. D. GILE v. INTERSTATE MOTOR CAR COMPANY, a Corporation

Supreme Court of North Dakota

February 13, 1914

Appeal from District Court, Nelson County, C. F. Templeton, J.

From an order granting a new trial, defendant appeals.

Reversed.

Scott Rex, for appellant.

The action for money had and received only lies in those cases where the defendant has received money or its equivalent which in equity and good conscience belongs to the plaintiff. Krump v. First State Bank, 8 N.D. 75, 76 N.W. 995; Logan v. Freerks, 14 N.D. 127, 103 N.W. 426; Martin v. Toyer, 19 N.D. 504, 125 N.W. 1027; Siems v. Pierre Sav. Bank, 7 S.D. 338, 64 N.W. 167; 15 Am. & Eng Enc. Law, 1096; 27 Cyc. 849.

Money paid in the fulfilment of a valid contract cannot be recovered back unless the contract has been rescinded by consent, or by failure of defendant to perform. 30 Cyc. 1322; Chemical Nat. Bank v. World's Columbian Exposition, 170 Ill. 82, 48 N.E. 331; Fox v Monahan, 8 Cal.App. 707, 97 P. 765; Todd v Bettingen, 109 Minn. 493, L.R.A.(N.S.) , 124 N.W. 443; Moses v. MacFerlan, 2 Burr. 1005, 1 W. Bl. 219; Slevin v. Police Fund Comrs. 123 Cal. 130, 44 L.R.A. 114, 55 P. 785.

A party who has breached the contract has no right to recover back the payments made by him. Clark v. American Development & Min. Co. 28 Mont. 468, 72 P. 978; Arnett v Smith, 11 N.D. 55, 88 N.W. 1037; Way v. Johnson, 5 S.D. 237, 58 N.W. 552; Maloy v. Muir, 62 Neb. 80, 86 N.W. 916; York v. Washburn, 118 F. 316; Warvelle, Vend. & P. § 926; McKinney v. Harvie, 38 Minn. 18, 8 Am. St. Rep. 640, 35 N.W. 668; Downey v. Riggs, 102 Iowa 88, 70 N.W. 1091; McManus v. Blackmarr, 47 Minn. 331, 50 N.W. 230; Lawrence v. Miller, 86 N.Y. 131; Hanschka v. Vodopich, 20 S.D. 551, 108 N.W. 28; Thomas v. McCue, 19 Wash. 287, 53 P. 161; Chemical Nat. Bank v. World's Columbian Exposition, 170 Ill. 82, 48 N.E. 331.

The contract in question is an executory one for the purchase of cars. Defendant never at any time sold plaintiff any cars. Defendant was at no time in default. Bell v. Hatfield, 121 Ky. 560, 89 S.W. 544, 2 L.R.A.(N.S.) 529, and case note; Krebs Hop Co. v. Livesley, 55 Ore. 227, 104 P. 3; 35 Cyc. 584.

The seller of goods is entitled to such damages as will put him in the same position as though he had been permitted to complete the contract, which usually is the difference between the contract price and what it would have cost him to perform. American Contr. Co. v. Bullen Bridge Co. 29 Ore. 549, 46 P. 138; Roehm v. Horst, 178 U.S. 1, 44 L.Ed. 953, 20 S.Ct. 780; Canfield v. Orange, 13 N.D. 622, 102 N.W. 313; Young v. Metcalf Land Co. 18 N.D. 441, 122 N.W. 1101.

Where the sum stipulated in the contract as damages is less than the actual damages, it cannot be held to be a penalty. Krausse v. Greenfield, 61 Ore. 502, 123 P. 392.

Losses which are the necessary and ultimate result of plaintiff's breach of the contract are proper elements of general damages, and need not be specially pleaded. 13 Cyc. 175; 5 Enc. Pl. & Pr. 740.

Assuming that the original answer was defective, it would have been an abuse of discretion had the court refused to permit the amendment offered. Martin v. Luger Furniture Co. 8 N.D. 220, 77 N.W. 1003; Welch v. Northern P. R. Co. 14 N.D. 19, 103 N.W. 396; Kerr v. Grand Forks, 15 N.D. 294, 107 N.W. 197; Webb v. Wegley, 19 N.D. 606, 125 N.W. 562.

Frich & Kelly, for respondent.

The contract involved in this case is a conditional sale. Poirier Mfg. Co. v. Kitts, 18 N.D. 557, 120 N.W. 558; Morrison Mfg. Co. v. Fargo Storage & Transfer Co. 16 N.D. 256, 113 N.W. 605.

After September 1, 1911, respondent could not require delivery of the cars under the contract, nor could appellant make delivery and compel acceptance and payment. Norrington v. Wright, 115 U.S. 188, 29 L.Ed. 366, 6 S.Ct. 12; Sweetzer v. Mellick, 4 Idaho 201, 38 P. 403.

The action for money had and received is equitable in its nature. It does not depend on an express promise, but on the fact of the receipt of the money by one from another, through oppression, imposition, extortion, or deceit, mistake of fact, or without consideration, or on a consideration that has failed, and from which the law implies a promise to repay. Ashton v. Shepherd, 120 Ind. 69, 22 N.E. 98; Richter v. Union Land & Stock Co. 129 Cal. 367, 62 P. 39; Tilford v. Roberts, 8 Ind. 254; Davis v. Marston, 5 Mass. 199; Dill v. Wareham, 7 Met. 438; Morrison v. Larrison, 1 Marv. (Del.) 211, 40 A. 1107; Field v. Banks, 177 Mass. 36, 58 N.E. 155; Hicks v. Steel, 126 Mich. 408, 85 N.W. 1121; Luce v. New Orange Industrial Asso. 68 N.J.L. 31, 52 A. 306; Bier v. Bash, 186 N.Y. 565, 79 N.E. 1101; Randlet v. Herren, 20 N.H. 102; Warder, B. & G. Co. v. Myers, 70 Neb. 15, 96 N.W. 992; Nollman v. Evenson, 5 N.D. 344, 65 N.W. 686; Dring v. St. Lawrence Twp. 23 S.D. 624, 122 N.W. 664; Scheer v. Clinton Falls Nursery Co. 20 N.D. 1, 124 N.W. 1115.

No objection to the form of this action was made in the lower court. Mahon v. Fansett, 17 N.D. 104, 115 N.W. 79; Northern Shoe Co. v. Cecka, 22 N.D. 631, 135 N.W. 177.

The deposit was merely as security for the performance of the contract,--that the purchaser would make diligent efforts to canvass the territory and sell the cars. Carson v. Arvantes, 10 Colo.App. 382, 50 P. 1080, 27 Colo. 77, 59 P. 737; 1 Sedgw. Damages, 410; Traub-Dittmar Constr. Co. v. Hartman, 61 Misc. 173, 112 N.Y.S. 919, 133 A.D. 889, 117 N.Y.S. 1149; Home Land & Cattle Co. v. McNamara, 49 C. C. A. 642, 111 F. 822; Drew v. Pedlar, 87 Cal. 443, 22 Am. St. Rep. 257, 25 P. 749.

Actual damages in this case, if any existed, were not difficult to fix, and this issue does not come under § 5370, Revised Codes 1905. Pacific Factor Co. v. Adler, 90 Cal. 110, 25 Am. St. Rep. 102, 27 P. 36; Seim v. Krause, 13 S.D. 530, 83 N.W. 583; Mansur-Tebbetts Implement Co. v. Willet, 10 Okla. 383, 61 P. 1066; Condon v. Kemper, 47 Kan. 126, 13 L.R.A. 671, 27 P. 829; Wilkes v. Bierne, 68 W.Va. 82, 31 L.R.A.(N.S.) 937, 69 S.E. 366; Squires v. Elwood, 33 Neb. 126, 49 N.W. 939; J. I. Case Threshing Mach. Co. v. Frank, 105 Minn. 39, 117 N.W. 229.

The appellant by his amended answer recognizes the contract as a sale, and has made an election of his remedy, and is bound by it. Tiedeman, Sales, §§ 331, et seq.; Blackburn, Sales, chap. III, ** 445, et seq.; 35 Cyc. title "Sales" subd. VIII, Remedies of Seller.

Appellant has suffered no actual damages and has no claim on the deposit money. McCormick Harvesting Mach. Co. v. Balfany, 78 Minn. 370, 79 Am. St. Rep. 393, 81 N.W. 10; Mead v. Rat Portage Lumber Co. 93 Minn. 343, 101 N.W. 299; D. M. Osborne & Co. v. Martin, 4 S.D. 297, 56 N.W. 905; Morris v. Wibaux, 159 Ill. 627, 43 N.E. 837; Canham v. Plano Mfg. Co. 3 N.D. 229, 55 N.W. 583; 35 Cyc. 531.

The rule is the same where damages for breach, and not the price of the goods sold, are sought to be recovered by the seller. Thick v. Detroit, U. & R. R. Co. 137 Mich. 708, 109 Am. St. Rep. 694, 101 N.W. 64; Norrington v. Wright, 115 U.S. 188, 29 L.Ed. 366, 6 S.Ct. 12; Sweetser v. Mellick, 4 Idaho 201, 38 P. 403; Gardner v. Caylor, 24 Ind.App. 521, 56 N.E. 134; Offutt v. Wells, 42 Ala. 199; Newbery v. Furnival, 56 N.Y. 638; Neis v. Yocum, 9 Sawy. 24, 16 F. 168; Parish v. United States, 8 Wall. 489, 19 L.Ed. 472; Smoot's Case, 15 Wall. 36, 21 L.Ed. 107; Ames v. Moir, 138 U.S. 306, 34 L.Ed. 951, 11 S.Ct. 311; 35 Cyc. 534, and notes; Fountain City Drill Co. v. Lindquist, 22 S.D. 7, 114 N.W. 1098; Scheer v. Clinton Falls Nursery Co. 20 N.D. 1, 124 N.W. 1115.

FISK, J. GOSS, J., BURKE, J., (dissenting).

OPINION

FISK, J.

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 Interstate Motor Car Company, party of the first part (hereinafter known as the distributers), and W. D. Gile, party of the second part (hereinafter known as the dealer); witnesseth:

(1) That the distributers hereby grant unto said dealer the right to sell Interstate cars in the following described territory, to wit: Williams, McKenzie, Billings, Bowman, Burke, Montraile, Dunn, Stark, Hettinger, and Adams counties. (The Interstate Motor Car Company reserves the right to cancel any of the above counties if no agency appointed on or before June 1, 1911, by the dealer.)

(2) The distributers hereby agree to sell to the dealer Interstate cars with standard catalogue equipment at a discount of 20 per cent from list price thereof. The price of Interstate 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 distributers 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 distributers unless said order shall clearly specify kinds and styles, dates of shipment, etc., and unless it is accepted by the distributer at least thirty 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 distributers 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 distributers to hereafter enforce the same.

(6) The distributers shall not be liable for any...