This is
an action brought by the defendant in error to recover
damages from the plaintiff in error for a breach of a
contract entered into by the respective parties on April 19
1904. The complaint alleges:
'III.
That on or about February 1, A.D. 1904, the said plaintiff
then being at the place of business of the defendant, in
the city of Chicago, Illinois, for the purpose of
ascertaining from said defendant the freight rates on goods
and merchandise which said plaintiff then contemplated
purchasing and shipping to Alaska, said defendant then and
there represented to the said plaintiff that it, the said
defendant, then owned and had a general stock of
merchandise, consisting of dry goods, clothing, boots and
shoes, hats, caps, gents' furnishing goods, carpets,
furniture and house furnishings, hardware, coal, groceries,
and provisions, and other miscellaneous merchandise, in its
warehouses and stores, in Nome, in the district of Alaska,
of the value of more than $75,000, and that it, the said
defendant, would have and own, at the opening of
navigation, at Nome, Alaska, in the year 1904, to wit, on
or about June 15, A.D. 1904, after selling from the said
stock of merchandise in the ordinary and usual course of
trade and business, merchandise of the kind hereinbefore
enumerated and described of the value of at least $75,000,
and that 40 per cent. or more of the said goods and
merchandise of the said defendant, remaining on hand at the
opening of navigation as aforesaid, would be and consist of
dry goods and other merchandise above mentioned, other than
and exclusive of groceries and provisions, and that all of
the said goods and merchandise remaining on hand at the
opening of navigation, as aforesaid, would be first-class
and of merchantable quality, and at said time and place
further represented to plaintiff that of the said goods and
merchandise which the said defendant would have and own at
the opening of navigation, as aforesaid, not more than 30
per cent. thereof, would consist of groceries and
provisions, and it, the said defendant, at said time and
place, for the purpose of inducing plaintiff to purchase
all of the stock of merchandise aforesaid, which it, the
said defendant, represented it would have and own at the
opening of navigation, as aforesaid, at Nome, Alaska, then
and there agreed with plaintiff that it, the said
defendant, would sell to plaintiff all of the said goods
and merchandise which the said defendant represented it
would have at Nome, Alaska, at the opening of navigation as
aforesaid, and which it, the said defendant, then and there
represented would be merchantable and of first-class
quality and of the amount and value of $75,000, and 40 per
cent. or more of which the said defendant agreed should be
and consist of dry goods, furnishing goods, and the
merchandise above-mentioned, other than and exclusive of
groceries and provisions, and that no more than 30 per
cent. thereof should be groceries and provisions, at and
for a price to be fixed and paid as mentioned in the
written contract hereinafter set forth, and it, the said
defendant, further agreed, at said time and place, that if
the said plaintiff should purchase the said stock of goods
and merchandise which it, the said defendant, then and
there represented it would have and own in its said
warehouses and stores at Nome, Alaska, at the opening of
navigation as aforesaid, that it, the said defendant,
would, between the date of the said contract
of purchase and the opening of navigation, as aforesaid,
sell the said goods and merchandise in the ordinary course
of trade only, and not sell the same at a sacrifice or less
and that, at the opening of navigation in the year 1904,
the said defendant would deliver to plaintiff, at Nome,
Alaska, the goods, wares, and merchandise of the kind,
quality, and quantity and of the value hereinbefore stated;
that the said plaintiff, relying solely upon the truth of
the said representations of the said defendant, and not
having any means of ascertaining the truth thereof, saving
and excepting that derived from the said representations of
the said defendant, did on or about the 1st day of
February, A.D. 1904, agree to buy and purchase of the said
defendant the goods and merchandise, with the express
understanding and agreement that at least 40 per cent.
thereof should consist of dry goods and furnishing goods of
merchantable and first-class quality, and that not more
than 30 per cent. thereof should consist of groceries and
provisions, and with the further express understanding and
agreement that the said defendant should not sell the said
goods, which it, the said defendant, then represented it
owned and had in its warehouses and stores in Nome, Alaska,
save and except in the usual and ordinary course of
business, and that none of said goods and merchandise
should be sold at a sacrifice, or at less than cost, at the
price stated and to be fixed and paid as mentioned, and in
the manner set forth in the written contract hereinafter
set forth; and plaintiff further alleges that he entered
into this agreement, for the purchase of the said goods and
merchandise, on the said representations of the said
defendant that 40 per cent. or more of the said goods,
wares, and merchandise should be goods other than groceries
and provisions, and that not more than 30 per cent. thereof
should consist of groceries and provisions, and not
otherwise.
'IV.
Said plaintiff further alleges that, relying solely upon
the said representations of the said defendant, and with
the express understanding and agreement above mentioned he,
the said plaintiff, did on the 19th day of April, A.D.
1904, enter into a written contract with the said defendant
in words and figures as follows, to wit:
'This
agreement, made this 19th day of April, 1904, by and
between the North American Transportation & Trading
Company, a corporation of the state of Illinois,
hereinafter called the seller, and Michael D. Samuels, of
Nome, Alaska, hereinafter called the buyer, witnesseth,
as follows: (1) The buyer agrees to buy and the seller
agrees to sell all the merchandise, except liquors,
cigars, tobaccos, and lumber, belonging to the seller in
the warehouses and stores at Nome, Alaska, at the opening
of navigation in 1904, at and for a price to be fixed as
follows: To the 'outside' invoiced cost shall be
added the freight, both as shown by the seller's
books, and from the total shall be deducted 25 per cent.
thereof, the remaining 75 per cent. of such outside cost
plus freight to be the price. (2) The title of all
merchandise so purchased, and of all merchandise, if any,
substituted therefor under the conditions of this
agreement, shall remain in the seller until the purchase
price of all of said merchandise has been fully paid, and
said seller shall select a cashier and bookkeeper as its
representative to retain possession thereof until said
purchase price is fully paid, who shall be paid by said
buyer. (3) The sum of one thousand ($1,000.00) dollars,
on account of said purchase price, is paid by the buyer
to the seller upon the execution of this instrument, the
receipt whereof is hereby acknowledged, and further sum
of four thousand ($4,000.00) dollars on account of said
purchase price shall be paid at the time said buyer
begins to conduct the store now conducted by the seller
at Nome, Alaska. The balance of the purchase price shall
be paid at the rate of $7,500.00 per month, the first of
such monthly payments to be made one month from the date
when said buyer begins to operate said store. (4) The
seller shall be further secured for the unpaid balance of
said purchase price by the deposit in the store
hereinafter mentioned of merchandise belonging to the
buyer, and in case sales of the merchandise hereby sold
shall exceed, after deducting expenses of the business,
the sum of $7,500.00 per month, then such excess shall be
paid on account of the purchase price, or such excess
shall be used in the purchase of merchandise, to be
placed in said store as security for the payment of the
unpaid part of the purchase price. (5) The buyer assumes
and
agrees to pay, from July 1, 1904, to July 1, 1905, the rent
of $275.00 per month of the N.C. Co. Store on Front street
in Nome, Alaska. (6) All merchandise owned by the seller,
now in the warehouses at Nome, Alaska, shall be delivered
to the buyer, free of storage charges. (7) The cost of
insurance upon the merchandise hereby sold, and upon all
replacements thereof, shall be paid by the buyer from the
time when he begins to operate said store.
"Duly
executed and delivered by the parties hereto, the day and
year first above written.
"The
North American Transportation and Trading Company, "By
W. H. Isom, Vice-President. "M. D. Samuels.
-- duly
attested by witnesses. And upon execution and delivery of
said written contract the said plaintiff paid unto the said
defendant the sum of $1,000 as a deposit upon the said
agreement of sale, and the said defendant has not returned
unto the said plaintiff any part thereof, although it, the
said defendant, has violated and failed to perform its said
contract and said plaintiff has demanded the return of the
same.
'V.
And said plaintiff further alleges that in the month of
February, A.D. 1904, and immediately after said plaintiff had
agreed to purchase the said stock of goods and merchandise
which were to be of the quality, quantity, and...
