Semon Bache & Co. v. Coppes, Zook & Mutschler Company

• Decision Date: 26 April 1905
• Docket Number: 5,190
• Citation: 74 N.E. 41,35 Ind.App. 351
• Court: Indiana Appellate Court
• Parties: SEMON BACHE & CO. v. COPPES, ZOOK & MUTSCHLER COMPANY ET AL

74 N.E. 41

35 Ind.App. 351

SEMON BACHE & CO. v. COPPES, ZOOK & MUTSCHLER COMPANY ET AL

No. 5,190

Court of Appeals of Indiana

April 26, 1905

From Elkhart Circuit Court; Francis D. Merritt, Judge.

Action by Coppes, Zook & Mutschler Company against Semon Bache & Co. and another. From a judgment for plaintiff defendant Semon Bache & Co. appeals.

Affirmed.

Miller Drake & Hubbell, for appellant.

Deahl & Deahl, for appellees.

OPINION

BLACK, J.

The appellant was sued by the Coppes, Zook & Mutschler Company, appellee, and the other appellee, Hawks Furniture Company, was required to answer as garnishee.

The appellant questions for the first time, by assignment of error, the sufficiency of the complaint, and also assigns as error the overruling of the appellant's motion for a new trial.

The complaint against the appellant showed that the plaintiff and the appellant entered into a contract, May 22, 1902, which, it was alleged, was partly in writing and partly in oral terms. The three writings thus referred to were in substance as follows: First, by a writing dated at Nappanee, Indiana, May 22, 1902, addressed to the appellant at New York, N. Y., signed by the plaintiff, and purporting to be accepted for the appellant by H. C. Feckheimer, the appellant was requested to enter the order of the plaintiff for French mirror plates and German bevel, all of certain sizes, at specific prices and terms of payment, designating the number of plates of each of the sizes indicated; "the same to be taken currently as specified on order between July 1, 1902, and January 1, 1903. We are to have the privilege of changing sizes from specifications furnished or of canceling, in event of an emergency, such portions of the order that have not been taken in work by you. Prices guaranteed against decline, and, in the event of receiving lower quotations, you to have the privilege of meeting same or else of canceling such portions of order that have not been taken in work, and likewise the balance of this contract. Should we at any time have occasion to notify you of lower quotations which you are unable to meet, it is understood that such portions of our orders as are in process of manufacture with you are to be taken by us at the price at which orders were placed."

Another writing of the same date, signed and accepted as was the first one above mentioned, purported to be an order by the plaintiff to the appellant to ship to the plaintiff at Nappanee, by a specified railroad, 2,200 American Beauty mirrors, stating the prices and terms of payment, and stating the sizes and the number of each size, "to be shipped currently between June 1, 1902, and January 1, 1903."

The other writing, of the same date and place, addressed to the plaintiff, and signed by H. C. Feckheimer for the appellant, was as follows: "Referring to your order for 2,200 American Beauty plates, placed with Semon Bache & Co. through me to-day, I agree, and it should be so understood between us, that none of said orders are to be shipped, except as may be specified and ordered by you from time to time, as your requirements may demand same."

It was alleged in the complaint that the plaintiff, October 8, 1902, furnished specifications and ordered the appellant to prepare and ship to the plaintiff certain mirror plates, as in the contracts provided, patterns for which had theretofore been furnished by the plaintiff for the appellant, which the latter neglected, failed and refused to do; that at various other dates between that last mentioned and December 7, 1902, the plaintiff furnished patterns and specifications, and ordered and demanded the appellant to ship all the mirror plates contracted for under the terms of the contracts above mentioned; that the appellant failed, refused and neglected, "and still refuses to comply with the terms of said contracts, though the plaintiff has made frequent demands upon" the appellant to comply with and to carry out the terms and conditions of the contracts; that, because of the neglect and refusal, the plaintiff was compelled to and did purchase of other parties, at a much higher and greatly advanced price, such mirror plates, and was compelled to, and did, pay the sum of $ 1,066.50 in excess of the amount to be paid to the appellant under the contracts for such plates; that the plaintiff purchased such mirror plates at the lowest and best prices then obtainable; that it spent much time and means in making new contracts and negotiations for such mirror plates, and suffered great loss through the delay thus occasioned in getting the goods of the plaintiff upon the market, all to its damage in the sum of $ 1,500; that the plaintiff performed and complied promptly with each and all of the conditions and provisions of said contracts to be by it performed, and the damages aforesaid "have been occasioned" by and through the fault and neglect of appellant, without fault on the part of the plaintiff, all to its damage, etc. Wherefore, etc.

1. It is suggested by the appellant that the contracts sued on are too indefinite and uncertain, and are unilateral and not binding on the plaintiff, and therefore are not binding on the appellant. The proposals set forth in the first two writings were not only signed by the plaintiff, but also accepted in writing on behalf of the appellant; and the third writing, which referred to the second, was signed on behalf of the appellant; but these facts would not render the contracts enforceable, however clear and unambiguous in their terms, if one of the parties thereto was not thereby bound to do or give, or to refrain from doing or giving, something ascertainable by the terms of the contracts; that is, if, because of failure to impose any obligation on one of the parties, the contracts lacked mutuality.

2. Let us examine the writings separately. Referring to the first writing, the plaintiff stipulated that the goods were to be taken by the plaintiff currently as specified on order between specified dates; the plaintiff to have the privilege of changing sizes from those specified, or of canceling, in the event of an emergency, such portions of the order as had not been taken in work by the appellant. The plaintiff was thus bound to take, and therefore to order, the goods specified between the dates indicated, though it might require changes of specified sizes. The plaintiff would be bound to take the plates of the sizes specified in this writing, or to indicate changes desired, and to take the plates of other sizes as specified in ordering them. The plaintiff was not left at liberty to order or take if it wished or desired to do so, but was bound to take, by ordering, the plates of the kind indicated in this writing of the sizes indicated therein, or in the future orders which it bound itself to make within a specified time, except that the plaintiff reserved the privilege of canceling, "in event of emergency, such portions of the order that have not been taken in work by" the appellant. This provision related to a future order whereby the plaintiff should propose to take currently any of the goods.

3. As to such portions of the goods thus ordered as should not have been taken in work by the appellant after the giving of the order, the plaintiff was to have the privilege of canceling the order to that extent, "in event of an emergency." The nature of the "emergency" which should authorize a cancelation was not described. It would necessarily have to be some unforeseen event or unexpected combination of circumstances which, considering the character of the business to which the contract related, would furnish what might reasonably be regarded as a substantial reason for the cancelation. This would be a condition ascertainable by evidence. Such provision did not contemplate a cancelation at the mere wish or upon the simple dictation of the plaintiff. It was to be bound unless there should arise an actual condition which, having regard to the subject-matter of the contract, the plaintiff might reasonably pronounce to be an emergency in the business, and the plaintiff should, because thereof, direct the stoppage of further work under the particular order.

In People v. Lee Wah (1886), 71 Cal. 80, 11 P 851, which was a...