Ohio Valley Buggy Company v. Anderson Forging Company
| Decision Date | 06 June 1907 |
| Docket Number | 20,870 |
| Citation | 81 N.E. 574,168 Ind. 593 |
| Parties | Ohio Valley Buggy Company v. Anderson Forging Company |
| Court | Indiana Supreme Court |
From Madison Circuit Court; John F. McClure, Judge.
Action by the Ohio Valley Buggy Company against the Anderson Forging Company. From a judgment for defendant, plaintiff appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p. 590.
Affirmed.
Chipman Keltner & Hendee and Frank B. Shutts, for appellant.
Bagot & Bagot, for appellee.
Action by appellant to recover damages from appellee on account of an alleged breach of a written contract. The complaint on which the cause was finally tried alleges that the plaintiff and defendant are both incorporated companies; that on September 24, 1900, these parties entered into a written contract, a copy of which was filed with the pleading whereby the defendant company agreed to sell and deliver to plaintiff company certain described goods, wares and merchandise, enumerated and specified in the contract; that the amount and kind of installment goods and wares ordered at various dates by the plaintiff and shipped to it by the defendant under the contract are all alleged and shown in the complaint; that plaintiff paid for all of these goods, and that said payments were accepted by the defendant; that the defendant, on February 22 and 28, 1901, reaffirmed the original contract, and waived any and all rights to renounce and rescind the contract upon any previous failure to pay for the goods within the time provided therein, and that the defendant recognized and affirmed the obligations of said contract on its part by accepting an order from plaintiff for the goods described in said contract.
The complaint alleges, as a breach of the contract in suit, that the plaintiff, on August 30, 1901, sent an order to the defendant for certain described goods, wares and merchandise, but the defendant, as it appears, refused to furnish these goods and wares, and by reason of its said failure the plaintiff was compelled to go into the open market to obtain the goods, and was compelled to pay for the same $ 488.80 more than it was required to pay the defendant for the same goods under the terms and conditions of the contract; that the plaintiff performed "each and all of the conditions and stipulations in said contract provided upon its part;" that, by reason of the defendant's failure to ship the goods ordered as aforesaid, plaintiff has been damaged in the sum of $ 488.80. Wherefore he demands judgment.
The defendant answered in two paragraphs, the first being the general denial. The second alleges that the plaintiff first broke and violated the contract in suit by repeatedly failing and refusing to make payments for the goods furnished and delivered to it by the defendant under said contract, in this, to wit, by the terms and provisions thereof all goods and merchandise therein embraced were to be paid for within sixty days from the date of shipment; that plaintiff repeatedly and persistently failed and neglected to pay for the goods and wares sold and shipped within the time provided, and continued openly to violate the contract in this respect (here follow numerous specifications of the shipments of goods and wares by the defendant to the plaintiff upon the order of the latter under the contract, which, as shown, it failed and neglected to pay for until long after the expiration of the sixty days, the time within which the payments were to be made); that, by reason of plaintiff's repeated violations of the contract in this respect, the defendant rescinded and repudiated said contract, and not otherwise.
The plaintiff replied to this answer in two paragraphs. The first the general denial. The second set up affirmative matter to show that after the rescission or repudiation of the contract by the defendant it waived all breaches or violations thereof by the plaintiff, and approved, ratified, and confirmed the contract in suit. Upon these pleadings the issues were joined. There was a trial by the court and a general finding in favor of the defendant, and over plaintiff's motion for a new trial, assigning only the statutory grounds, judgment was rendered in favor of the defendant.
There are other stipulations and provisions in the contract which are not material to the question here involved, hence they are not set out.
The damages claimed by appellant, under the evidence, are based upon the breach of contract which, as alleged in the complaint and shown by the evidence, occurred on August 30, 1901, and is attributed to appellee's failing and refusing to furnish to appellant a certain lot of bow sockets ordered by the latter company on that date. Appellee's counsel, however, insist that because appellant violated the contract on its part in repeatedly failing and neglecting to make payments within the terms and provisions of the contract, for the goods sold and furnished thereunder, it rescinded and repudiated the contract long before August 30, 1901; of all of which appellant had notice.
The evidence in the case shows that after the execution of the contract in question the first shipment of goods thereunder was made by appellee to appellant on September 29, 1900. These goods appear to have been paid for on November 13, 1900, within the sixty days. The evidence discloses, however, that after this first shipment some six other separate and successive shipments were made, and in each and all of which appellant was in default in making payments within the time prescribed in the contract. To particularize in this respect, the evidence shows that a shipment of goods made on October 3, 1900, was not paid until February 15, 1901, or 135 days beyond the date of shipment. Goods that were shipped November 1, 1900, remained unpaid until February 15, 1901, 107 days beyond the date of shipment. For goods shipped November 13, 1900, appellant failed to pay until about February 15, 1901, or 94 days after the date of shipment. Goods shipped on November 30, 1900, were not paid for until March 2, 1901, 92 days beyond the date of shipment. Shipments made December 4, 1900, remained unpaid until March 2, 1901, 88 days after the date of shipment. Goods shipped December 18, 1900, were not paid for until March 2, 1901, or 73 days after shipment.
Appellant, as it appears, made and prolonged its default of payments in the face of the fact that appellee was requesting and urging payment for the goods which it had shipped and furnished. Other shipments appear to have been made as follows: January 4, 1901; January 29, 1901; February 8, 1901; February 15, 1901. All of these shipments were paid for by appellant on April 1, 1901. The next and last shipment after this was made March 1, 1901, and paid for on the 6th of the following month. After appellant had permitted the bill for the shipment of goods made on January 4, 1901, to run unpaid for eighty-two days, appellee, about March 27, 1901, gave notice of its intention to cancel the contract. Mr. Friedrich, president of appellant company, testified that his company had full notice from appellee that the latter intended to cancel the contract, for the reason that appellant did not pay its bills. The notice received by appellant of appellee's purpose to cancel the contract appears to have aroused appellant to action, and therefore on receiving the notice it promptly paid all of its bills, and by April 6, 1901, all accounts for goods furnished it by appellee appear to have been paid and settled. No other shipments were made by appellee after this payment. On April 24, 1901, it appears that appellant ordered from appellee some bow sockets. This order was not filled. On April 26, 1901, appellee notified appellant that it had actually canceled the contract on account of appellant's violation thereof. Again, on May 24, 1901, appellee, in response to another order from appellant for bow sockets, wrote a letter to the latter, stating therein that as the appellant had violated the contract by not paying its bills when due, as it had agreed, it (appellee) had canceled the contract.
We have here presented under the evidence a question of law which counsel for appellant insist is erroneously decided by the judgment of the trial court. In their endeavor to sustain this view ...
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