Moon Motor Car Co. v. Moon Motor Car Co.

• Decision Date: 19 November 1928
• Docket Number: No. 43.,43.
• Citation: 29 F.2d 3
• Parties: MOON MOTOR CAR CO., OF NEW YORK, v. MOON MOTOR CAR CO., Inc.
• Court: U.S. Court of Appeals — Second Circuit

29 F.2d 3 (1928)

MOON MOTOR CAR CO., OF NEW YORK, v. MOON MOTOR CAR CO., Inc.

No. 43.

Circuit Court of Appeals, Second Circuit.

November 19, 1928.

Carl Ehlermann, Jr., of New York City (C. D. Williams, of New York City, of counsel), for appellant.

Cotton & Franklin, of New York City (George H. Savage and Franklin S. Wood, both of New York City, on the brief), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge (after stating the facts as above).

The maker promised not to sell any cars within the specified district, except to the dealer, who in turn promised to buy 900 cars, to sell no other make of cars anywhere, to set up a shop, and to push the sales. These promises were given in exchange for each other and created a contract; of so much there can be no doubt. The maker has repudiated this contract, and so committed a wrong, so that at least the question arises whether the dealer can recover any damages for being deprived of his monopoly of Moon cars in his district. This both sides seem to think depends upon whether the maker has promised to sell any cars or not. We cannot agree. Suppose that the dealer has promised to buy, and the maker has not promised to sell. Nevertheless the dealer had his monopoly by virtue of which the maker must sell to him, if he would sell at all. The contract had been in force for more than three years, and had only seven months to run; we cannot say that it was an impossible task to show, with certainty enough to support a verdict, how many cars the maker would in fact have delivered under the pressure of this limitation, even though he was not legally bound to deliver any at all.

It is therefore not necessary at present finally to decide whether or not he was so bound, and it is best not to do so, because the complaint contains, and could contain, none of the setting in which the words were used, and this is always competent, and usually necessary, to their understanding. As the case must go back, we say only this, not wishing it to be taken as controlling, but merely as indicative of what the words mean, if the surroundings do not change that meaning. The maker did not expressly promise to sell. This would, of course, not be final. Mills-Morris Co. v. Champion Spark Plug Co., 7 F.(2d) 38 (C. C. A. 6); Ellis v. Dodge Bros., 246 F. 764 (C. C. A. 5); Wood v. Duff-Gordon, 222 N. Y. 88, 118 N. E. 214; Kentucky, etc., Co. v. Lucas (D. C.) 5 F.(2d) 723. On the other hand, he did expressly promise to supply parts, but without preference, and only as he was able to fill orders in the sequence of their receipt. He made no unconditional promise to supply even these, which were far less substantial commitments than completed cars. If there be nothing disclosed to change the normal meaning of the words, it would in our judgment be unreasonable to imply an absolute promise to supply 900 cars, in the face of these express stipulations as to the parts.

It is true that this left the dealer exposed to a "put" of 75 cars a month, but the resulting inequality was not serious. The maker had to keep up his metropolitan market, and would certainly do his best to allocate his full stint to the dealer, through whom alone he could sell. The absence of an express promise probably indicated an unwillingness to give more than the security arising from the monopoly. At any rate, if he had meant to promise at all, he would certainly have guarded this obligation like the lesser one which he expressed. We leave this aspect of the case open for the plaintiff to prove, if it can, that the words ought not to be read so literally, and we need hardly add that on that issue it may show anything, except what the parties said to each other outside the writing.

There remains the question whether the terms are too indefinite to be enforced. At first blush this would seem not to be relevant, if the maker has not promised to sell, because it is the dealer who complains, and his damages will depend on proving how many cars the maker would have voluntarily delivered. Yet, if the contract were unenforceable in respect of the dealer's obligation, it would altogether fall. Were we to save the maker's promise not to sell within the district, and the dealer's not to sell other cars and to set up a salesroom and the like, and nevertheless to cut out the dealer's obligation to take 900 cars, we should be making a new contract.

There is no objection to a promise that it is indefinite so long as the parties can tell when it has been performed, and it is enough if, when the time arrives, there shall be in existence some standard by which that can be tested....