Hirschhorn v. Nelden-Judson Drug Co.

• Decision Date: 01 May 1903
• Docket Number: 1381
• Citation: 72 P. 386,26 Utah 110
• Parties: CHARLES HIRSCHHORN, MARC H. MACK, and FREDERICK HIRSCHHORN, Partners in Business under the Firm Name and Style of HIRSCHHORN, MACK & COMPANY, Respondents, v. NELDEN-JUDSON DRUG COMPANY, a Corporation, Appellant
• Court: Utah Supreme Court

72 P. 386

26 Utah 110

CHARLES HIRSCHHORN, MARC H. MACK, and FREDERICK HIRSCHHORN, Partners in Business under the Firm Name and Style of HIRSCHHORN, MACK & COMPANY, Respondents, v. NELDEN-JUDSON DRUG COMPANY, a Corporation, Appellant

No. 1381

Supreme Court of Utah

May 1, 1903

Appeal from Third District Court, Salt Lake County.--Hon. C. W Morse, Judge.

Action to recover the unpaid balance alleged to be due on the sale and delivery to the defendant of a lot of cigars and tobacco. From a judgment in favor of plaintiffs, the defendant appealed.

AFFIRMED.

Messrs Stephens & Smith and Ashby Snow, Esq. for appellant.

Messrs Powers, Straup & Lippman for respondents.

BASKIN C. J., delivered the opinion of the court. BARTCH, J., and HART, District Judge, concur.

OPINION

BASKIN, C. J.

STATEMENT OF FACTS.

This is an action to recover $ 584.90, the unpaid balance alleged to be due on the sale and delivery to the defendant of a lot of cigars and tobacco. It is alleged in the answer that "the defendant admits that it bought a large quantity of cigars and tobacco from the plaintiffs, and that the sum of $ 584.90 would be due to the plaintiffs from the defendant except for the matters hereinafter stated, but denies that there is any sum whatever due and unpaid to the plaintiffs from the defendant." The answer also alleged, by way of counterclaim, the following: "That, at all times hereinafter mentioned, the plaintiffs were, and now are co-partners, engaged in business under the firm name and style of Hirschhorn, Mack & Co., in the State of New York, and engaged in the business of manufacturing and selling cigars and tobacco at wholesale. That this defendant, Nelden-Judson Drug Company, is now, and at all the times hereinafter mentioned was, a corporation organized under the laws of the State of Utah doing business at Salt Lake City in buying and selling cigars and tobacco at wholesale. That on or about the 6th day of July, 1898, the plaintiffs and defendant entered into a contract whereby it was mutually agreed that the defendant was to have the exclusive sale of the plaintiffs' goods in the State of Utah and part in the State of Idaho and Wyoming, and the defendant agreed to solicit the sale of said plaintiffs' goods by its traveling salesmen, and distribute advertising matter to be furnished by plaintiffs, and in consideration thereof the plaintiffs agreed to fill all orders of the defendant at stated prices and discounts, for the purpose of resale, for a profit, by the defendant within the territory above mentioned. That since the 6th day of July, 1898, and up to the month of March, 1900, the defendant, acting under said contract, purchased from the plaintiffs, and sold within the territory granted, under orders as aforesaid, goods, wares, and merchandise of the plaintiffs, to-wit, cigars to the amount of $ 46,451, and solicited the sale of plaintiffs' said goods, and distributed advertising matter furnished by plaintiffs, in accordance with said contract. That all of the purchases of goods by the defendant of plaintiffs were made for the purpose of resale at a profit, all of which was well known to the plaintiffs. That between the 27th day of February, 1900, and the 5th day of March, 1900, and before said contract with said plaintiffs had been terminated, or any notice of the termination of the same given to the defendant, the defendant duly ordered of plaintiffs, in accordance with said contract, and in accordance with the usual custom of the parties thereto, certain goods," consisting of 100,000 cigars, of the various brands therein mentioned. "That the same were ordered for the purpose of filling orders for said goods already accepted by the defendant from its customers, and for a future sale thereof at a profit. That the plaintiffs willfully failed and refused to fill said orders and deliver said goods to defendant, and, by reason of the failure and refusal so to do, this defendant was unable to fill said orders of its customers, and lost the profits on the same, and was deprived of and lost the profit and benefit that it...