Paxton & Gallagher v. Pellish

• Citation: 43 Wyo. 182,299 P. 708
• Decision Date: 02 June 1931
• Docket Number: 1687
• Parties: PAXTON & GALLAGHER v. PELLISH
• Court: United States State Supreme Court of Wyoming

299 P. 708

43 Wyo. 182

PAXTON & GALLAGHER v. PELLISH

No. 1687

Supreme Court of Wyoming

June 2, 1931

APPEAL from District Court, Albany County; VOLNEY J. TIDBALL, Judge.

Action by Paxton & Gallagher Company against R. Pellish and another doing business as Pellish Brothers. From the judgment defendants appeal.

Affirmed.

For the appellants there was a brief and oral arguments by W. W Tipton and John D. McGowen, of Laramie, Wyoming.

The controversy arose over the meaning of the phrase "price guaranteed against decline to 12-31-28, which was inserted in the contract. The court erred in finding that the sale of ammunition by the Shapleigh Hardware Company did not constitute "price decline" within the meaning of the guaranty. Courts will look to the position of the parties and the object of the contract. Rutledge v. McAfee, (Md.) 18 A. 1103; Bass v. Veltun, 28 Minn. 512, 11 N.W. 65; Parker v. Adams, 47 Vt. 139; Spang v. Raney, 79 F. 250; McGarry v. Co., 95 Wash. 412, 163 P. 928; Standard Oil Co. v. Oil Co., 26 Fed (2nd) 895; Hull v. Westerfield, (Nebr.) 29 A. L. R. 105; Ford v. Norton, (N. M.) 260 P. 411; Hoff v. Ledive Co., (Calif.) 196 P. 779. Ambiguities will be decided most strongly against the party who prepared the contract. 6 R. C. L. 854, 2 Williston Cons. 1203, 13 C. J. 546; Hoff v. Co., (Calif.) 196 P. 779; Ford v. Norton, (N. M.) 260 P. 411. It was the duty of the court to construe the contract. Phillips v. Hamilton, 17 Wyo. 41. Words cannot be read into a contract to impart an intent unexpressed. 13 C. J. 524; Beech Grove Imp. Co. v. Title Co., (Ind.) 98 N.E. 373; Douglas Oil Fields v. Hamilton, 17 Wyo. 54; Conway Co. v. Chicago, (Ill.) 113 N.E. 703. The cause should not be restricted to guarantee against decline at the factory. American Co. v. Staley, (Tex.) 274 S.W. 272; Solter v. Leedom, 252 F. 133. The court erred in finding that Shapleigh Hardware Co. generally did not lower the price in 1928. Standard Oil Co. v. Wright Co., 26 F. 895; McGarry v. Co., (Wash.) 163 P. 928.

For the respondent there was a brief and oral argument by E. T. Lazear, of Cheyenne, Wyoming.

The clause of the contract relates to general market price. 38 C. J. 1261; Wing v. Wadhams Co., 74 N.W. 820. That was what the parties had in mind. 29 A. L. R. 112; Salter v. Co., 252 F. 133. Authorities cited by appellant are not in harmony with this principle. 55 A. L. R. 268 and cases in note. Beymer Co. v. Haynes, 16 A. 326; Twitchell Co. v. Radovsky, 92 N.E. 1039; Kings Co. v. Sales Co., (Cal.) 279 P. 1036. The facts are quite different in the case of Ford v. Norton, cited by appellant. The finding of the court that sales by Shapleigh did not establish a decline within the meaning of the contract was correct, and should be sustained.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

On January 24, 1928, Pellish Brothers, the defendants herein, bought of the plaintiff, Paxton & Gallagher Company, of Omaha, a bill of goods consisting of shotgun shells, intended to be sold by the defendants during the game season of 1928, lasting from September to December, both months inclusive. The goods were to be shipped during the summer shortly previous to the commencement of the game season. In the written order given for these goods, the plaintiff's agent, who sold the goods to the defendants, wrote into the contract the clause in controversy in this case, namely, "price guaranteed against decline to December 31, 1928." The order signed by the defendants also contained the following printed clause: "If we are quoted lower prices by responsible parties on goods of equal quality, we are to have the privilege of cancelling this order unless you desire to meet such prices, providing we notify you at least ten days before above mentioned date of shipment." The shipment was made on August 25, 1928. Defendants claim that the price of shotgun shells declined in 1928 as contemplated in the special clause inserted as above mentioned. The evidence on behalf of the plaintiff shows that no such decline took place. The evidence on behalf of the defendant shows that in the latter part of November or the fore part of December, 1928, an agent of Shapleigh Hardware Company, jobbers of ammunition, of St. Louis, Missouri, offered to sell the defendants shotgun shells similar to those bought from the plaintiff at less than one-half the price. A list of these shotgun shells was introduced in evidence, which shows the regular price per thousand and the special price at which they were offered at the time above mentioned, and contained the clause "sold subject to stock on hand." A letter from this company written to the defendants on April 8, 1929, indicates that the special price above mentioned was made for a special reason. The court found on this subject that by a new "simplification method" of manufacturing shotgun shells a differently made shell was placed on the market in the year 1928, the new shells having a non-rusting primer and being shellacked. The court further found

"that on or about December 1st, 1928, the Shapleigh Hardware Company, the same being a large distributor of ammunition, placed several car loads of ammunition identical to that sold by the plaintiff, Paxton & Gallagher Company, to the defendants, Pellish Brothers, on the market at a greatly reduced price, believing that the new shell would render the old style shell obsolete; that by this sale the price of such shells was reduced from thirty (30) to fifty (50) per cent; and that these defendants had opportunity to purchase such shells in quantities of their own desire at such reduced price."

The court also found that

"the shell manufacturers of the country, including the National Lead Company, who was the manufacturer of the shells in question, did not lower the price of shells in 1928 and that the only sale of shells shown by the evidence at a reduced price, was the sale by the Shapleigh Hardware Company as (above set forth)."

The court concluded, as a matter of law, that the special offer made by the Shapleigh Hardware Company did not constitute a "price decline" such as was contemplated in the order given to the plaintiff above mentioned, and held the defendant liable for the balance due on the contract, in the sum of $ 257.45. Judgment was rendered accordingly, and the defendant has appealed to this court.

The question involved in this case, accordingly, is as to whether or not the special offer and the special sales by the Shapleigh Hardware Company as above mentioned, constituted a price decline within the meaning of the special clause inserted in the contract above mentioned. Not many cases are found upon the subject. A note thereon is contained in 55 A. L. R. 268. The main cases upon which counsel for the defendants herein rely are McGarry v. Superior Portland Cement Co., 95 Wash. 412, 163 P. 928, Ann. Cas. 1918A, 572, and Ford v. Norton, 32 N.M. 518, 260 P. 411, 414, 55 A. L. R. 261.

The exact basis of the decision in the McGarry case is not clear. McGarry, a contractor, was about to bid on the construction of a county road in King County, and bought cement at $ 1.90 per barrel, with the agreement, as he claimed, that in case the cement company "quoted" a less price to any other contractor or concern, or agreed to furnish cement at a less price to any other contractor or concern, he should have a rebate of a corresponding amount. The cement company claimed that he was to have a rebate, if the "market price" fell below $ 1.90. After this agreement was made, the cement company offered cement to King County for $ 1.75 per barrel, and the county, in giving notice to the contractors, agreed to furnish cement at that sum. The trial court held this to be a quotation of a lower price, and that respondent was entitled to a rebate. The court evidently adopted the contention of McGarry that the "quoted" price should govern, and it is, of course, clear that a quotation different from that to McGarry was made to the county, and in this view, the decision could not well have been other than it was. The Supreme Court, however, further discusses "market price" to some extent, and apparently holds that even if the contract was as contended by the cement company, McGarry was entitled to a rebate, and bases its holding partially, apparently, on the fact that there was no, or few, sales to any one except defendant and the county, and mainly on the intention of the parties saying in part:

"The contract was made with reference to road work in King County, and it is evident that the parties had in mind that respondent should have protection against the quotation of any lesser price to those engaged in work of a like kind or character. The intent of the contract was to put respondent on the same footing as other like contractors. Appellant quoted a lower price to the county for the advantage of contractors generally. This was a reduction of the market price in so far as such price was quoted to, or for the benefit of, those engaged in the same kind of work."

The intention being as here mentioned, the decision was, of course, clearly right. The situation in the case at bar is, however, entirely different, and the facts from which an intention to give a rebate could be gathered are of a wholly different kind.

In Ford v. Norton, supra, it appears that the parties had entered into a contract to the effect that the defendant, who was engaged in the business of selling gasoline at retail, should buy all such gasoline, at wholesale, from the plaintiff at market price. Plaintiff demanded from 18 1/2 to 20 cents per gallon, claiming that as the market price, and at which some of the gasoline was actually sold. But there was a so-called gas war on for a period of...