Keller v. Reynolds

• Decision Date: 30 January 1895
• Docket Number: 1,350
• Citation: 40 N.E. 76,12 Ind.App. 383
• Parties: KELLER ET AL. v. REYNOLDS
• Court: Indiana Appellate Court

40 N.E. 76

12 Ind.App. 383

KELLER ET AL. v. REYNOLDS

1,350

Court of Appeals of Indiana

January 30, 1895

Reported at: 12 Ind.App. 383 at 390.

From the Allen Circuit Court.

Judgment affirmed.

Swayne & Ninde and A. A. Chapin, for appellants.

C. H Worden, for appellee.

OPINION

GAVIN, J.

The appellee sued appellants for a breach of written contract, by the terms of which she agreed to invest $ 3,000 in dental supplies, under the direction of appellants (who were handling such goods), which were to be sold by appellants, at their own expense, in the regular course of their business, the prices, terms and manner of sale to be determined by appellants; the amount of goods put into the hands of appellants' agents and salesmen to be controlled by appellee; the cost price of such goods so sold to be repaid to appellee from time to time, when collected, or, if not collected within thirty days from the maturity of the accounts therefor, with an additional sum of 5 per cent. on the selling price of such goods, payable only when the same was collected, all losses to be borne by appellants.

Appellee also agreed "to keep on hands a stock of goods, to be purchased as aforesaid, as same is disposed of, to the amount of $ 3,000, or more, at cost purchase price. In consideration of such investment appellants further agreed to employ E. L. Reynolds in their business at $ 3.83 per day, payable weekly, such employment being expressly based on appellee's said investment, which if not made in full according to said agreement, said Mary E. Reynolds agrees to pay to said first party such loss as may occur for failure to make the same, party of the first part to be responsible to party of the second part for all stock that party of the second part shall place in hands of first party at cost price."

E. L. Reynolds is constituted the agent of appellee as to all matters arising out of or connected with the contract. Right of inspection of books, etc., is given to appellee. The contract to continue so long as the parties mutually agree, but in case appellee's investment shall be $ 5,000 or more it is not to be terminated for two years, except by mutual consent.

"In case parties can not and do not mutually agree, party of the first part agrees to collect all outstanding accounts in which said Mary E. Reynolds may be interested as fast as can be, said collections to be under the supervision of E. L. Reynolds, agent of Mary E. Reynolds, in the office of the Keller Dental Company, and pay over to her or her agent, E. L. Reynolds, said money and 5 per cent. on the whole account, as fast as received, until said second party has received the full amount due her." E. L. Reynolds to be employed for ninety days from date of "mutual disagreement of either party. Said disagreement and notice of dissolution to be stated in writing." If at the end of said ninety days said appellee should not have received the full amount of "her investment and per cent. thereof," the balance to be secured by valid accounts, 6 per cent. interest to be paid on the balance due at the end of ninety days until paid.

The first paragraph of complaint, which was based upon this agreement, averred that in pursuance of such contract appellee paid appellants $ 3,000, which they invested in teeth, and with the proceeds derived from the sale of the same, from time to time, purchased large quantities of teeth, to-wit: the sum of $ 8,000 worth, and made large sales of such teeth, in what amount appellee can not state with particularity, but she believes it to be in the sum of $ 18,000; that appellants received payment for the teeth so sold, but, in violation of the terms of their said contract, have failed and refused to account to appellee in any way for the teeth so sold, or to pay her the cost price thereof, as provided by said contract, or the 5 per cent. profit on such sales.

It is further averred that on February 14, 1893, appellee elected to terminate said contract, and caused written notice thereof to be served on appellants; that since such termination appellants have failed and refused to make settlements with her, as provided in said contract, or to pay her the amount due upon her investment and her per cent. upon sales, and that there is due her on settlement $ 800, and that she has been damaged $ 800 by appellants' failure and refusal to carry out said contract.

Other paragraphs were for money due on notes or for money loaned. Answers of general denial, payment and various other affirmative matters with reply of general denial closed the issues. Upon trial by jury a general verdict in favor of appellee was returned with answers to special interrogatories, upon which judgment was rendered over the motion for new trial.

Counsel for appellants claim the first paragraph of complaint to have been bad on demurrer for want of facts, because it fails to allege, by either specific or general averment, the performance by appellee or her agent E. L. Reynolds, of all the various matters to be by them performed in the course of conducting the business under said contract, upon the theory that some of these matters, such as keeping $ 3,000 invested in stock, are conditions precedent and some concurrent stipulations upon the performance of which appellants' obligations were dependent.

Whether or not the performance of those things to be done by appellee is to be regarded as a condition precedent is to be determined from an examination of the entire contract, giving to it a reasonable and fair interpretation. Those matters as to which appellee has failed to aver performance constitute but a part of the consideration for the agreement of appellants to pay to her the amounts named, and since the agreement has been in an essential feature performed by appellee and the benefit of such performance received by appellants and any loss to appellants from her failure to completely perform may be compensated by damages, such stipulations will be regarded as independent and not as constituting conditions precedent. Pickens v. Bozell, 11 Ind. 275; Harman v. Moore, 112 Ind. 221, 13 N.E. 718; Cummings v. Pence, 1 Ind.App. 317, 27 N.E. 631; Boone v. Eyre, 1 H. Bl. 273; 2 Pars. Conts. (5th ed.), 525-529.

There are, of course, many contracts in which the requirements must be regarded as conditions precedent or as covenants interdependent, performance of which must be alleged, but when fairly construed this contract is not of that character.

It would be manifestly iniquitous to say that appellants should receive and keep appellee's $ 3,000 because she had not kept the investment up to that amount continually or because she had failed to perform some other matters called for in this contract.

The appellee furnished appellants this $ 3,000 which they invested in teeth, sold them and collected the money, which it then became their duty, under the contract, to pay over to her, with its profits, or...