J. P. Smith Shoe Company v. Curme-Feltman Shoe Company

• Decision Date: 11 January 1918
• Docket Number: 9,458
• Citation: 118 N.E. 360,71 Ind.App. 401
• Parties: J. P. SMITH SHOE COMPANY v. CURME-FELTMAN SHOE COMPANY
• Court: Indiana Appellate Court

118 N.E. 360

71 Ind.App. 401

J. P. SMITH SHOE COMPANY
v.
CURME-FELTMAN SHOE COMPANY

No. 9,458

Court of Appeals of Indiana

January 11, 1918

Rehearing denied June 28, 1918. Transfer denied November 21, 1919.

From Marion Superior Court (93,610); W. W. Thornton, Judge.

Action by the J. P. Smith Shoe Company against the Curme-Feltman Shoe Company, wherein defendant filed a counterclaim. From a judgment for defendant, the plaintiff appeals.

Reversed.

Clarence E. Weir, Charles P. Ritter, Charles W. Richards, J. J. Cermak and McEwin, Weissenbach & Schrimski, for appellant.

Leander J. Monks, John F. Robbins, Henry C. Starr, James P. Goodrich and Carl H. Weyl, for appellee.

FELT, J. Ibach, C. J., Batman, P. J., Dausman, Caldwell and Hottel, JJ., concur.

OPINION

[71 Ind.App. 403] FELT, J.

This suit was instituted by appellant to recover a balance due for shoes alleged [118 N.E. 361] to have been [71 Ind.App. 404] sold and delivered to appellee. There are two paragraphs of complaint. The first counts upon shoes sold and delivered. The second is substantially the same as the first, except it avers a parol contract for the purchase of certain shoes by appellee from appellant with certain modifications thereof during the period of its fulfillment.

The controverted issues arose upon appellees' counterclaim filed in two paragraphs. The counterclaim sought to recoup by way of damages (1) for defective shoes which were unsalable and were by reason thereof returned to appellant; (2) for shoes appellant failed to manufacture and deliver according to the contract of purchase; (3) loss on account of sales and replacements of defective shoes; (4) on account of loss occasioned by necessary sales of defective shoes below the regular retail price; (5) for loss occasioned by sales of mismated shoes and necessary replacements by appellee; (6) for loss on account of defective shoes unsold and still in possession of appellee at the time of the trial.

Upon request the court made a special finding of facts and stated its conclusions of law thereon, which were in favor of appellee, and awarded net damages in its favor on the counterclaim in the sum of $ 1,021.93.

Appellant's motion for a new trial was overruled, and judgment was rendered on the conclusions of law for the aforesaid amount and costs of suit.

Appellant has assigned as error each of the several conclusions of law and the overruling of its motion for a new trial.

The finding of facts is very long. We therefore set out its substance, and such portions thereof as will [71 Ind.App. 405] enable us to apprehend and decide the questions presented by the briefs.

The findings show that appellant was, and for many years had been, a manufacturer of shoes, in the city of Chicago, which it sold to retail dealers; that appellee is a corporation engaged in the business of selling shoes at retail in its several stores located in the cities of Indianapolis, Richmond and Muncie, Indiana; that it has been engaged in such business continuously since March, 1911, during all of which time it had been a customer of appellant, and had purchased from it large quantities of both high shoes and Oxfords of the kinds and grades described in the complaint, which shoes it had sold to its customers, and had thereby built up an extensive trade in such shoes and created a demand for them among the customers of its several retail stores aforesaid, prior to and during the year 1913; that the shoes so purchased and used by appellee were bought on orders given to appellant's agent, W. O. Holloway, at appellee's store in the city of Indianapolis, Indiana, and were so sold to appellee to be resold by it in the usual course of retail trade to its customers of its several stores aforesaid, all of which was known to appellant at all times during the period covered by the transactions aforesaid up to and including the transactions in the fall of 1912 and subsequently thereto; that the agent of appellant called upon appellee on September 17 and November 22, 1912, to sell shoes on orders for future delivery; that appellant was then engaged in the construction of a new factory, and, fearing delay in the delivery of shoes purchased, appellee refused to place any orders therefor with appellant, except upon the condition that any shoes ordered should be [71 Ind.App. 406] manufactured and made ready for shipment to appellee before removal to the new factory aforesaid, to which condition appellant expressly agreed; that, in pursuance of such agreement, on September 17, 1912, appellee ordered from appellant 2,770 pairs of Oxford shoes to be shipped February 1, 1913, to its several stores as indicated; that on November 22, 1912, appellee bought through appellant's agent aforesaid 1,320 pairs of high shoes to be ready for shipment by February 15, 1913, and 846 pairs of high shoes known and designated as "tramp last"; that the purchase price of all of said shoes was made f. o. b. Chicago, as follows:

Oxfords $ 2.75 per pair except 103 pairs, which were $ 2.60 per pair.

High shoes, not tramp last, per pair: 25 pairs, $ 3.25; 714 pairs, $ 2.85; 578 pairs, $ 3.35; 846 pairs, tramp last, $ 2.85.

Appellee also bought from appellant certain other shoes designated "stock shoes," for which it agreed to pay the sum of $ 465; that all the indebtedness due for shoes purchased as aforesaid has been paid, except the sum of $ 3,283.27, which amount is due and unpaid, and is subject to all lawful amounts arising out of appellees' counterclaim filed herein; "that it was agreed by plaintiff and defendant, as a part of said orders and sales of shoes, that all shoes so ordered by defendant should be manufactured by plaintiff in special designs and patterns for defendant, different from all other shoes manufactured by plaintiff, and when so manufactured they should have the name of defendant stamped therein and thereon by plaintiff; and that all such shoes so manufactured [71 Ind.App. 407] under such orders were accordingly so made up in such special designs and patterns, and were so stamped with the name of defendant.

"That at the time of soliciting the orders for shoes by plaintiff from defendant, and on the agreement of plaintiff so to sell such shoes to defendant pursuant thereto, plaintiff knew and understood that said shoes were being purchased by defendant to be resold to its customers in the usual course of its retail trade at its three said several stores, and that there was at that time an extensive demand there for them among defendant's customers, and that at the time of the giving of said orders by defendant, and of the agreement of plaintiff so to manufacture and sell said shoes to defendant, it was within the contemplation of the parties that said shoes should be sold by defendant at a retailer's profit, as hereinafter set forth, at its said three places of business." That appellee was at all times ready and willing to perform its part of said contracts of purchase, and has fully performed the same except as prevented by the failures or occasioned by the default of appellant in relation thereto.

Appellant failed and neglected to manufacture and ship to appellee said Oxford shoes by February 1, 1913, in accordance with its contract, though it could have done so, but it did make shipments thereunder as follows:

"To defendant at its said Indianapolis store:

[118 N.E. 362]

[71 Ind.App. 408] To the defendant at its Richmond store:

March 14, 1913	183 pairs
March 17, 1913	97 pairs
March 19, 1913	214 pairs
March 21, 1913	103 pairs
March 24, 1913	139 pairs
April 2, 1913	199 pairs
April 7, 1913	111 pairs
April 11, 1913	85 pairs
April 18, 1913	127 pairs
April 20, 1913	124 pairs
May 13, 1913	108 pairs
A total of	1,490 pairs.

March 17, 1913	44 pairs
March 19, 1913	125 pairs
March 21, 1913	25 pairs
March 24, 1913	20 pairs
April 2, 1913	77 pairs
April 7, 1913	33 pairs
April 11, 1913	39 pairs
April 16, 1913	114 pairs
April 21, 1913	98 pairs
April 25, 1913	71 pairs
April 29, 1913	24 pairs
May 2, 1913	75 pairs
May 13, 1913	24 pairs
May 19, 1913	33 pairs
A total of	802 pairs.

To defendant at its Muncie store:

March 17, 1913	101 pairs
March 19, 1913	21 pairs
March 21, 1913	52 pairs
April 2, 1913	109 pairs
April 7, 1913	62 pairs
April 11, 1913	133 pairs
A total of	478 pairs."

[71 Ind.App. 409] (11) That, without any fault of appellee, appellant failed to manufacture and ship to it, or to have ready for shipment on call as per contract, by February 15, 1913, said 1,320 pairs of high shoes, not tramp last, though there was ample time to have done so; that appellee frequently demanded the delivery of said shoes according to contract, and after February 15, 1913, urged delivery thereof at its several stores aforesaid, but was only able to receive shipments as follows:

To defendant's said Indianapolis store:

March 21, 1913	2 pairs
March 24, 1913	42 pairs
April 2, 1913	202 pairs
April 7, 1913	57 pairs
April 11, 1913	100 pairs
April 18, 1913	14 pairs
April 29, 1913	12 pairs
A total of	429 pairs

To defendant's Richmond store:

March 21, 1913	18 pairs
March 24, 1913	66...