Matthews Glass Co. v. Burk
| Decision Date | 16 March 1904 |
| Docket Number | 20,239 |
| Citation | 70 N.E. 371,162 Ind. 608 |
| Parties | Matthews Glass Company v. Burk |
| Court | Indiana Supreme Court |
Rehearing Denied May 11, 1904.
From Grant Circuit Court; H. J. Paulus, Judge.
Action by the Matthews Glass Company against Benjamin F. Burk. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court, under § 1337u Burns 1901.
Reversed.
P. B Manley, S. L. Stricler and C. L. Medsker, for appellant.
G. A Henry and P. H. Elliott, for appellee.
The appellant sued the appellee for a balance of $ 3,500, claimed to be due on account of eight car loads of window glass sold and delivered by the appellant to the appellee under a contract in these words:
The appellee filed an answer in denial, a plea of payment, and a counterclaim. The only material part of the counterclaim on this appeal is a demand for a reduction of the price of the glass on account of rebates made by the American Window Glass Company December 7, 1899, to which he alleged he was entitled by the terms of the foregoing contract. The first paragraph of answer to the counterclaim was a denial; the second an argumentative denial; and the third averred that the rebates made by the American Window Glass Company to its customers were illegal, because not made in the ordinary course of trade, but for the purpose of preventing competition; that the price fixed by the American Window Glass Company was less than the cost of manufacture, and that the said company was an unlawful combination for the purpose of creating a monopoly in the window glass business. No reply was filed. A demurrer to appellee's counterclaim was overruled, and a demurrer to the third paragraph of appellant's answer to appellee's counterclaim was sustained. The cause was tried by the court, and there was a finding for the appellee. A motion for a new trial was overruled, and judgment was rendered on the finding.
The rulings on the demurrer and on the motion for a new trial are assigned for error.
We find no error in the action of the court in sustaining the demurrer to the third paragraph of appellant's answer to the counterclaim. The purpose of the contract between the appellant and the appellee was not to prevent competition, but to enable the appellee to compete successfully with the customers of the American Window Glass Company. For all that appears in the pleadings, the nature of that corporation and its methods of doing business were as well known to the appellant when it entered into the contract with the appellee, as at any time afterward. The parties having seen fit to adopt the prices which might be fixed by the American Window Glass Company for the sale of its glass to its customers as the basis of the prices to be paid by the appellee to the appellant, neither of them can be heard to say that the American Window Glass Company was an illegal combination, and that its methods of dealing were unfair. They fixed the terms of the agreement with each other voluntarily and deliberately, and we can discover no reason why one of them should be released because prices went down instead of being advanced. If the prices of glass had been kept up by the American Window Glass Company, we cannot think that the appellant would have objected to the contract on the ground that the American Window Glass Company was an unlawful combination for the purpose of creating a monopoly in the business of manufacturing and selling window glass.
2. The principal controversy is over the proper construction of the contract. The appellant claims that the price to be paid for glass was five per cent. lower than the lowest price made by the American Window Glass Company, all rebates included, on all sizes single strength, and on all sizes double strength to sixty united inches; and seven and one-half per cent. lower than the lowest price made by the American Window Glass Company, all rebates included, on all sizes double strength sixty united inches and over, less two per cent., up to the time of the delivery of each shipment to the appellee. The latter contends that the price of the glass was to be computed after the production was completed upon the basis of the whole quantity sold and delivered and that the total sum to be paid by the appellee to the appellant was to be five per cent. and seven and one-half per cent. less than the lowest prices at which the American Window Glass Company sold the same kind of glass, during the same period, all rebates included, less two per cent.
The contract was an executory one, and contemplated the sale of the entire output of the appellant for the season of 1899 and 1900. The time and the quantity of the shipments were not fixed. It may be assumed that the glass was to be delivered as fast as manufactured in sufficient quantities to justify shipment. Payment was to be made by the appellee on receipt of each shipment. At what price? The contract answers the question. At a discount of five per cent. lower than the lowest price made by the American Window Glass Company, all rebates included, on all sizes single strength, and on all sizes double strength to sixty united inches; and on all sizes double strength, sixty united inches and over, at a discount of seven and...
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