National Pub. Co. v. International Paper Co.

• Citation: 269 F. 903
• Decision Date: 12 November 1920
• Docket Number: 11.
• Parties: NATIONAL PUB. CO. v. INTERNATIONAL PAPER CO.
• Court: U.S. Court of Appeals — Second Circuit

269 F. 903

NATIONAL PUB. CO. v. INTERNATIONAL PAPER CO.

No. 11.

United States Court of Appeals, Second Circuit.

November 12, 1920

Action is for breach of a contract in writing, which plaintiff set forth in the complaint according to its supposed legal effect, as follows: That said contract was one 'whereby defendant (Paper Company) agreed to sell to plaintiff (Publishing Company), and plaintiff agreed to buy from defendant, 400 tons of half-tone newspaper'; that plaintiff delivered only 83 tons, and refused to deliver the balance, wherefore damages were demanded for the breach thus pleaded.

At trial it appeared without denial that the contract executed December 31, 1915, was that Paper Company would sell and Publishing Company buy 'the entire supply of half-tone newspaper required to print rotogravure supplements printed in the city of St. Louis, Mo., during the period of one year beginning February 1, 1916, and ending January 31, 1917, both inclusive, estimated at 400 tons, to be ordered and delivered in installments of approximately . . . tons per month. ' At date of contract Publishing Company had a 'regular business,' carried on in St. Louis and consisting in 'manufacturing comic supplements, magazine sections, and things of that sort for other papers. ' The company however, had never used the rotogravure, and was in the act of installing a machine suitable therefor.

Paper under the above contract was demanded and received, but the rotogravure branch of the business did not require as much as 400 tons in a year; indeed, down to October 25, 1916, less than one hundred tons had been demanded, and of that amount more than half was sold, and not used by the vendee. At date last given, Publishing Company demanded delivery of the difference between what had already been received and 400 tons. Refusal of this demand produced the action before us.

It further appeared without contradiction that Paper Company had received all and more of the paper it bargained for than was needed by it for 'rotogravure supplements'; that the blank for monthly deliveries in the written contract existed because Publishing Company did not know and could not estimate its wants with sufficient accuracy to give a definite figure; and that the insistence of October 25, 1916 on further deliveries, was solely for the purpose of selling again on a rapidly rising market.

At the close of evidence, both parties moved for a direction, the court granted defendant's motion, and plaintiff brought this writ.

Walter C. Noyes and Henry Pearlman, both of New York City, for plaintiff in error.

Stetson Jennings & Russell, of New York City (Theodore Kiendl, Jr. Lee McCanliss, and Frederic W. Girdner, all of New York City, of counsel), for defendant in error.

Before WARD, ROGERS, and HOUGH, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

Plaintiff's position, as defined by pleading, is that the contract before us is one for 400 tons of paper, and every word in it unnecessary to express this thought is mere surplusage. Its position, as outlined by conduct, and never disavowed to our knowledge, is that it was entitled to take as much or as little as it wanted, and whenever it wanted, provided all was demanded within the year, and the total did not exceed 400 tons. But never has plaintiff asserted the writing to be no contract, or (as the phrase is commonly used) a void contract.

The meaning of this written agreement is to be gathered from its simple words. No 'secret intention can be imported into contracts whose terms and meanings are plain and unambiguous and do not express' such secret intent; it is only the intention of the parties which the contract itself expresses, that the courts may enforce. Cold Blast, etc., Co. v. Kansas City, etc., Co., 114 F. 80, 52 C.C.A. 25, 57 L.R.A.

696. We can give effect to the intention of the parties 'only through the words they employ. ' Woolsey v. Ryan, 59 Kan. 605, 54 P. 664. Nor does this document afford the slightest reason for invoking parol or other extraneous evidence for its explanation, interpretation, modification, or enlargement. Cf. Church v. Proctor, 66 F. 240, 13 C.C.A. 426.

If the parties' words mean that Publishing Company was expected to demand what paper it wanted, when and if it wanted the same, up to 400 tons in one year, the contract is open to the fundamental objection noted in Burgess, etc., Co. v. Broomfield, 180 Mass.at page 284, 62 N.E. 367:

'When the only consideration is one by way of mutual promises, if the plaintiff (vendee) is under no obligation in the matter, there is no consideration for the promise of defendant (vendor), and his promise is nudum pactum.'

And the language of Crane v. Crane, 105 F. 869, 45 C.C.A. 96, is very apt, for where the so-called contract 'leaves it practically optional with the purchaser to increase or diminish his orders with the rise or fall of prices, as may be most to his advantage and the corresponding disadvantage of the seller,' it is void for lack of mutuality.

Apart from all other considerations, the contract is not to be voided, except of necessity; 'ut res magis valeat,' etc., is a good rule, even in respect of private writings. But the same rule works against plaintiff's position as pleaded and avowed in argument; for if the agreement is merely for the sale of 400 tons of paper, why were so many words employed, which the parties must once have thought possessed of meaning, and why are they now to be cast aside?

Yet this document is clearly either what plaintiff says it is, or it is a requirement contract. It is said that it cannot be the latter, because Publishing Company had never made rotogravures, and, as its press was not quite ready at date of contract, there was then no business in being, having any demand for which the paper would be a supply. This is refining too much on the phrase 'requirements of a...