Pittsburgh Plate Glass Co. v. Jarrett

• Citation: 42 F. Supp. 723
• Decision Date: 20 January 1942
• Docket Number: No. 141.,141.
• Parties: PITTSBURGH PLATE GLASS CO. v. JARRETT.
• Court: U.S. District Court — Middle District of Georgia

42 F. Supp. 723

PITTSBURGH PLATE GLASS CO. v. JARRETT.

No. 141.

District Court, Middle District Georgia, Macon Division.

January 20, 1942.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Wm. A. Fuller, of Atlanta, Ga., for plaintiff.

Anderson, Anderson & Walker, of Macon, Ga. (R. L. Anderson, of Macon, Ga., of counsel), for defendant.

DEAVER, District Judge.

Plaintiff filed suit on the following note:

"$8800.00 Jan. 10, 1935 For value received I promise to pay Pittsburgh Plate Glass Co. or order, the sum of Eight Thousand eight hundred Dollars with interest from this date at the rate of — per cent per annum, at Atlanta, Ga., in monthly installments, payable as follows, to-wit $100 dollars on the 25 day of Jany 1935, and $100.00 on Feby. 25, Mar. 25 &amp Apr. 25, 1935 $150.00 on May 25, June 25, July 25, Aug 25, Sep. 25 & Oct. 25, 1935 $100.00 "Nov. 25 & Dec. 25, 1935. Balance to be put into new note Jan. 1, 1936. "Jarrett Paint & Glass Co. "H. K. Jarrett."

The petition set out certain payments on the note with dates and amounts and, as finally amended, asked judgment for the balance of $4,275.10 with interest at 7 per cent.

Defendant filed a motion to strike on the ground that the suit is premature in that, as appears from the petition, all installments designated in the note have been paid and no other installment has become due.

In his answer defendant says payments on the note were discontinued with the acquiescence of plaintiff because defendant was making payments on another series of notes owed to plaintiff by defendant and that, by an understanding between the parties, no further payments were to be required of defendant on the note sued on so long as satisfactory progress was being made toward the liquidation of said other indebtedness.

The answer contains also a cross action based upon two grounds. There is attached to the answer the following contract between the parties:

"Profit Sharing Plan for

"Pittsburgh Proof Products' Agencies

"For the purpose of advancing the mutual interest of Jarrett Paint & Glass Co. distributor of Pittsburgh Proof Products at Macon Ga., hereinafter called the dealer, and the Pittsburgh Plate Glass Company, a Pennsylvania Corporation, hereinafter called the Company, this agreement as herein set forth is entered into by both parties.

"1. The Dealer agrees that in order to improve his position as distributor of Pittsburgh Proof Products through increased volume and to participate in the profit sharing plan herein provided he will maintain adequate and well assorted stocks of all such Pittsburgh Proof Products as are needed to properly serve the requirements of his trade, to aggressively push their sale and to take the fullest possible advantage of the Company's advertising and other cooperative efforts to that end.

"2. When the dealer buys Pittsburgh Proof Products within a period of twelve months at the Company's dealer prices and discounts in effect at the time of sale and as shown on the Company's printed price lists, and pays for them in accordance with the terms as shown on the invoice, the Company, at the end of each twelve months' period, will set up profits for the dealer on its books in accordance with the following schedules:

"On total net twelve months purchases amounting to $10,000.00, but less than $15,000.00

"10% on Group `A' Products "10% on Group `B' Products

"3. It is mutually agreed and understood that the dealer's purchases of Class `C' Products also of White Lead, Linseed Oil, Turpentine, Sundries and other items not specified in the lists of `A' and `B' Products are not to be included in establishing the total purchases of Pittsburgh Proof Products, and are not subject to the Profit Sharing Rates.

"4. It is agreed that the Company may terminate this Profit Sharing Agreement at any time should the dealer fail to comply with the terms of sale, or should he fail to cooperate fully as dealer distributor of Pittsburgh Proof Products.

"5. It is agreed that the Company is not liable for any delays or contingencies beyond its reasonable control.

"The Company agrees to confine the sale of Proof Products to the above dealer for Macon, Ga.

"Pittsburgh Plate Glass Company "Date — By J. E. Ingram "Jan. 8, 1930 Warehouse Manager. "Warehouse — Atlanta Jarrett Paint & Glass Co. Dealer Distributor. "Salesman — E. B. By — H. K. Jarrett." McDougal

Defendant says that on March 1, 1941, plaintiff, over the protest of defendant, opened in Macon a branch store for the sale of its own products to the trade in Macon and thereby, to the damage of defendant, breached the terms of the contract which provides that "The Company agrees to confine the sale of Proof Products to the above dealer for Macon, Georgia."

As a second ground of cross action defendant alleges that for eighteen years he had purchased from plaintiff its products and sold them in Macon as sole local dealer; that on March 1, 1941, over the protest of defendant, plaintiff opened said branch store and has been selling its products in competition with defendant at less than the prices at which same had been previously sold in Macon and at prices less than defendant, as local dealer, could sell them profitably and has made it unprofitable for defendant to continue to purchase and sell plaintiff's products in Macon, and has thus eliminated defendant as a competitor; that plaintiff was engaged in commerce and its conduct was in violation of § 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C.A. § 13(a). Treble damages are asked under § 4 of the Clayton Act, 15 U.S.C.A. § 15.

Plaintiff moved to strike the first cause of the cross action on the ground that the contract was illegal, unilateral, indefinite as to duration and as to quantity of products to be bought and sold, and to strike the second cause of cross action on the ground that the facts alleged constitute no violation of either the Clayton Act or the Robinson-Patman Act.

Plaintiff further moved for summary judgment.

1. The suit was not premature.

(a) The note was payable in monthly installments which in varying amounts were set out up to December, 1935, "balance to be put into new note Jan. 1, 1936". Even if the note required the balance to be put into a series of monthly notes, the amount could not be determined, because the prior installments were not in equal amounts. But this note calls for balance to be put in one note without designating any due date.

The burden was on the maker to give or tender the new note. Geer v. Grow, 31 Ga.App. 254, 120 S.E. 426.

A note in which no time for payment is expressed is payable on demand and is due immediately. Georgia Code, § 14-207; Love v. Perry, 19 Ga.App. 86, 90 S.E. 978; Exchange Bank v. Odum, 19 Ga.App. 52, 90 S.E. 977; American Wholesale Corp. v. Bryant, 5 Cir., 2 F.2d 31. No new note having been given or tendered and no due date having been expressed for the balance, it became due on Jan. 1, 1936, and bore interest from the date of the note.

(b) The alleged agreement not to require payments as long as defendant was paying on other notes, if made, was without consideration and void. Lee v. Wilmington Savings Bank, 31 Ga.App. 327, 120 S.E. 689; Holmes v. First Natl. Bank, 19 Ga.App. 810, 92 S.E. 298.

2. Did the opening of a branch store in Macon by plaintiff give defendant a right of action for breach of the exclusive sale contract?

(a) Quantity of goods.

A contract for the purchase of such quantity of goods as will meet the needs or requirements of the purchaser for a given purpose is not wanting in mutuality on the ground that no definite quantity is stated, if the quantity to meet such needs or requirements is ascertainable with reasonable accuracy. Pittsburgh Plate Glass Co. v. H. Neuer Glass Co., 6 Cir., 253 F. 161; Oak City Cooperage Co. v. Kennedy Stave & Cooperage Co., 4 Ga. App. 344, 61 S.E. 499; McCaw Mfg. Co. v. Felder & Rountree, 115 Ga. 408(2), 41 S.E. 664; Fontaine v. Baxley, 90 Ga. 416, 17 S.E. 1015; Mills-Morris Co. v. Champion Spark Plug Co., 6 Cir., 7 F.2d 38; Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co., 8 Cir., 114 F. 77, 57 L.R.A. 696; Harrington Bros. Inc., v. City of New York et al., D.C., 51 F.2d 503; Albany Power Co. v. City of Albany, 133 Ga. 375, 381, 65 S.E. 886; Texas Co. v. Pensacola Maritime Corp., 5 Cir., 279 F. 19; United States v. Purcell Envelope Co., 249 U.S. 313, 39 S.Ct. 300, 63 L.Ed. 620. So, with agreement to maintain adequate supply for needs. Ken-Rad Corp. v. R. C. Bohannan, Inc., 6 Cir., 80 F.2d 251.

In a requirements contract, an agreement by the seller to sell imports an agreement by the buyer to buy. Fontaine v. Baxley, 90 Ga. 416, 426, 17 S.E. 1015; Klipstein & Co. v. Allen, C.C., 123 F. 992. And an agreement by one party to buy binds the other party to sell. Ellis v. Dodge Bros., 5 Cir., 246 F. 764; Kentucky Tobacco Products Co. v. Lucas, Collector, D.C., 5 F.2d 723; Mills-Morris Co. v. Champion Spark Plug Co., 6 Cir., 7 F.2d 38(1).

It follows that the contract in this case is not void for indefinite statement of quantity.

(b) Duration of contract.

The contract in this case does not state any time during which it is to continue. The decided cases deal with contracts which provide no time for their duration and with contracts which reserve the right to cancel and are not harmonious. Some of them will be referred to.

In Electric Railway Co. of Savannah v. Tennessee Coal, Iron & Railway Co., 98 Ga. 189, 26 S.E. 741, the court held that a contract for three carloads of coal a day for a period not specified could be terminated at the will of either party, but continued in force until one party gave notice. However, in such case, it is clear, from the decision in Lederle v. City of Atlanta, 164 Ga. 440(2), 138 S.E. 910, that the contract ends when notice is given and not within a reasonable time after notice. See Buggs v. Ford Motor Co., 7 Cir., 113 F.2d 618; Silbernagel v. Hirsch Distilling...