A. Klipstein & Co. v. Allen

• Decision Date: 29 May 1903
• Docket Number: 1,725.
• Citation: 123 F. 992
• Parties: A. KLIPSTEIN & CO. v. Allen et al.
• Court: U.S. District Court — Northern District of Georgia

123 F. 992

A. KLIPSTEIN & CO. v. Allen et al.

No. 1,725.

United States Circuit Court, N.D. Georgia.

May 29, 1903

Bryan & Alexander, for plaintiff.

Roper & Brandon, for defendants.

PARDEE, Circuit Judge.

After due investigation, I have concluded to overrule both demurrers-- the demurrer to the petition on authority of section 3664 of the Civil Code of Georgia, and the demurrer to the answer on the grounds elaborated by Judge Sanborn in Cold Blast Transportation Co. v. Kansas City Bolt & Nut Co., 114 F. 77, 81, 52 C.C.A. 25, 57 L.R.A. 696, on which counsel on both sides of the case rely.

It is to be noted that the amended answer contains the averment 'that solid quebracho was a necessary product for defendant's factory, and the factory could not be run without its use. ' It is this amendment which, in my opinion, brings the case within the rule declared and supported by authority in Cold Blast Transportation Co. v. Kansas City Bolt & Nut Co., supra, to wit:

'An accepted offer to furnish or deliver such articles of personal property as shall be needed, required, or consumed by the established business of the acceptor during a limited time is binding, and may be enforced, because it contains the implied agreement of the acceptor to purchase all the articles that shall be required in conducting his business, during this time, from the party who makes the offer.'

And it is to be further noted that if, upon the trial of the case, the above averment shall be denied by the plaintiff, and shall not be supported by the evidence, it will not then be too late for the court to declare the alleged contract, on which the answer is based, to be void for want of mutuality.