Oliver v. Perkins

• Decision Date: 17 June 1892
• Citation: 92 Mich. 304,52 N.W. 609
• Court: Michigan Supreme Court
• Parties: OLIVER v. PERKINS et al.

52 N.W. 609

92 Mich. 304

OLIVER v. PERKINS et al.

Supreme Court of Michigan

June 17, 1892

Error to superior court of Grand Rapids; EDWIN A. BURLINGAME Judge.

Action on the case by Joseph W. Oliver against Harford J. Perkins and Willis J. Perkins. Verdict and judgment for plaintiff. Defendants appeal. Affirmed.

Fitzgerald & Barry, for appellants.

Drury & Wolcott, for appellee.

MCGRATH J.

Defendants are manufacturers of machinery at Grand Rapids, as copartners under the name and style of Perkins & Co. December 10, 1888 defendants entered into a written contract with plaintiff relating to the sale of a mitre cutting machine and a dado head and other novelties, by the terms whereof Perkins & Co. agree to originate and perfect the machines. That the patents should be taken out in the name of Willis J. Perkins, and the title thereto should vest in him. That the privilege of manufacture should vest in defendants, but that no royalty should be paid by plaintiff, except as therein provided. That plaintiff agrees not to divulge or take advantage of any mechanical secrets that he may come in possession of while in communication with defendants or their employes or on the premises of defendants. That defendants will manufacture, or cause to be manufactured, a sufficient number of such machines, as hereinbefore stated, as shall be required to meet the demands created by plaintiff, and, if the defendants shall fail to meet the demands for such machines as are to be built under this agreement, as created by plaintiff, within a reasonable time allowed for their manufacture by defendants, then plaintiff shall be entitled to have said machines manufactured at any other place that may be agreeable to him. That, in case it may become necessary to have machines manufactured elsewhere, Oliver was to pay to Willis J. Perkins 10 per cent. of the gross valuation of the articles. That defendants should not sell or cause to be sold any machine manufactured under this contract, except by and with the consent and approval of plaintiff, and that they shall turn over to plaintiff all moneys received in the sale of such machines, except as hereinbefore provided. That defendants were to establish the prices of the goods. That defendants were to discount to plaintiff the sum of 40 per cent. from the gross valuation of the selling price of the goods manufactured under this contract in the monthly rendering of bills for such goods as may have been shipped from the factory of the defendants by the plaintiff, or by his order during the month preceding such settlement. That all bills shall be rendered by defendants to the plaintiff on the first day of each month for all shipments made during the preceding month, and that settlement shall be made therefor by the plaintiff to the defendants by giving his [52 N.W. 610] note at 30 days from such date, as per statement rendered by the defendants. That plaintiff should turn over to or keep on deposit with defendants a sufficient amount of notes or personal accounts, that shall be received in payment for goods sold under this contract, to satisfy as collateral security the defendants for monthly indebtedness for goods shipped under this contract. That defendants were delegated in the absence of plaintiff from the city, to open all letters addressed to Grand Rapids Machinery Company, and indorse for collection all checks or drafts mailed to said company for the payment of goods sold under this contract as per directions given; also to appropriate from monthly collections for monthly settlements the sum of 85 per cent. of such settlements, as heretofore provided, that shall be rendered under this contract for goods shipped, balance of said bill to be settled for after personal examination by plaintiff of statement rendered by defendants. That all expenses of selling and collecting were to be settled by the plaintiff. That delivery of the goods was to be treated as completed when the goods were boxed and stood in defendants' warerooms. That there should be no accumulation of stock, except by mutual consent. That, if the normal amount of trade as established by the plaintiff shall drop off, through lack of effort on his part to maintain it up to its maximum condition, or for any of the reasons assigned in section 20 herein, defendants shall be entitled to the privilege of prosecuting such trade in their own behalf, in such manner as they may deem suitable. That defendants shall supply to plaintiff desk room for the transaction of business pertaining to the machinery manufactured under this contract; also the use of the telephone and of Bradstreet's Commercial Agency without charge, except that plaintiff shall pay for all special reports obtained through Bradstreet's Agency the sums that are charged by said agency for such reports. The plaintiff agrees not to employ or retain as office help in the office of defendants any person who is obnoxious to the defendants. That, if defendants do not succeed in producing a machine satisfactory to plaintiff, then this agreement shall be void. That plaintiff further agrees to carefully consider all designs of the machines which shall be built under this contract, which shall be submitted to him by defendants, and shall give his opinion relative to their worth or deficiency as pertaining to the use for which they are designed, before said machines are constructed. That the existence of this contract may be terminated by either party on six months' notice, for the following reasons, viz.: For frauds perpetrated by either party, noncompliance with the terms of this contract or violation thereof, for nonpayment or nonattention to accounts when maturing, and for bad workmanship. That said first party should pay the freight on goods returned by reason of faulty construction, and should repair, without charge, such machines. That, in case of any patent litigation respecting said machines, the expenses should be borne equally. That said second party should transact all business under the contract in the name of the Grand Rapids Machinery Company The business was entered upon and conducted under this contract until November 17, 1890.

Plaintiff declares in an action on the case. The declaration sets out the contract. That, in accordance with its terms, plaintiff had entered upon it, and had built up a large and lucrative business under it, and had expended certain moneys in building it up. That he had performed its terms and conditions properly. That it was the duty of defendants to perform its terms and conditions; yet that defendants disregarding their duties and obligations under said contract, on November 17, 1890, contriving and maliciously intending to harm, injure, and prejudice the said plaintiff in his good name and credit, and to harm, injure, and destroy his said business of selling said machines, and to take away and destroy his revenues and profits arising and accruing to said plaintiff from his said business, so as foresaid carried on and continued under the name and style of Grand Rapids Machinery Company, and to take away and destroy the revenue and profit that should arise and accrue to the said plaintiff in the future prosecution of said business, wrongfully entered in and upon the premises and office of said plaintiff, and then and there wrongfully carried away and removed from said office, during the absence of said plaintiff, of the chattels and personal property of the plaintiff, his books of account, a large number of orders not yet filled, his shipping book, several books of bills of lading, and other books, papers, and receipts and vouchers, which books of account contained good collectible accounts amounting to $2,500 against divers persons, belonging to plaintiff, which said goods and chattels defendants have concealed and retained and have wholly refused to deliver up. That defendants then and there wrongfully prevented plaintiff from carrying on his business, refused to continue said business, or to supply plaintiff with machines to fill orders already taken, and defendants thereafter entered upon and engaged in manufacturing and selling said machines to other persons without plaintiff's consent. And said defendants then and there wrongfully and without notice or legal proceedings expelled and ejected the said plaintiff from his office in the said city of Grand Rapids, and removed all of said plaintiff's office furniture from his said office, and placed the same in the street, and thereafter refused to admit and allow the said plaintiff to enter his said office; and then and there wrongfully wholly refused to allow, and have hitherto prevented, the said plaintiff from further prosecuting his said business of selling said machines; and then and there wrongfully gave out and published to the business public, and to all the customers of the said plaintiff in said business, and to the commercial agencies of the Bradstreet Company and R. G. Dun & Co. that the said Grand Rapids Machinery Company and said plaintiff have no right, title, or interest in said machines and in the business of selling the same, and that the said defendants would hereafter exclusively handle them; and then and there wrongfully notified all parties from whom plaintiff had obtained orders for said machines that they should cancel their said orders, and send new orders to the said defendants; and then and there wrongfully procured new orders placed with said defendants; and wrongfully and falsely gave out and published through the commercial agencies of Bradstreet Company and R. G. Dun & Co. to the business public and to the customers of said plaintiff that said Grand Rapids Machinery Company had been succeeded to in its business by the defendants; and wrongfully and falsely gave out...