"This is a suit in conversion. The action was instituted by plaintiff (the Studebaker Corporation) April 15, 1916, in the circuit court of Buchanan county, against defendant Holliday Motor Car Company, a corporation, and Henry Wyatt, personally, to recover the value of three automobiles alleged to have been converted by defendants, of the value of $2,372.06, for which a check was given by defendant Holliday Motor Car Company, and upon which payment was stopped.
"Defendant Wyatt filed a separate answer in the nature of a general denial. The Holliday Motor Car Company filed a separate answer in the nature of a general denial and counterclaim praying for the cancellation of its said check held by the plaintiff and for judgment in the sum of $931.76. At the close of the case a demurrer was sustained as to defendant Wyatt. Verdict and judgment were in favor of defendant Holliday Motor Car Company, and against the plaintiff, and a further finding in favor of defendant and against plaintiff upon its counterclaim in the sum of $900.
"On February 29, 1916, defendant motor car company purchased three Studebaker motor cars of plaintiff for $2,369.31, which said cars were delivered to the defendant company and in payment therefor a cheek was issued, signed Holliday Motor Car Company, by Henry Wyatt, president, and upon which payment afterwards was stopped. Thereafter plaintif, through lie agent, J. W. Holliday, demanded that defendants return said automobiles, which demand was refused. The petition alleges the defendant at wrongfully converted said cars to their Own use.
"Defendant Holliday Motor Car Company, be its answer and counterclaim, alleged that defendant controlled the agency for the baker automobile and parts manufactured by plaintiff, and that this agency was exclusive in certain territory named, and for which said agency defendant held a contract; that by the terms of said contract plaintiff was to deliver all automobiles and parts thereof which defendant should order, and that defendant hired salesmen, mechanics, etc., and incurred other great expense to operate the business of selling plaintiff's cars, etc., and said contract: between plaintiff and defendant became effective July 1, and continued in force until canceled by plaintiff by letter from its main office at Detroit, dated March 6, 1916. Defendant further stated that it gave its cheek for $2,368.31, in payment of the three cars in question, but that after execution and delivery of the cheek it learned that plaintiff intended to cancel the contract with said defendant, and the payment of the cheek was stopped.
"The answer and counterclaim further alleged that defendant demanded of plaintiff that it fulfill its contract in regard to delivering the ears already ordered which plaintiff refused to do; that although defendant had given plaintiff its cheek for $2,369.31, no such sum was due plaintiff because defendant had a large cash deposit with plaintiff, and because additional commissions clue defendant had not been paid by plaintiff to defendant; that defendant had ordered certain automobiles from plaintiff to fill orders already taken, and had tendered cash for same; and that said tender was refused. The prayer of the answer and counterclaim was for judgment for $931.75 mid interest, and for an order canceling the check for $2,369.31.
"Plaintiff duly demurred to the separate answer and counterclaim, and also filed a motion to strike out certain parts of said answer and counterclaim, both of which motions were by the court overruled.
"During the progress of the trial, defendant Holliday Motor Car Company, by permission of the court, amended its said answer and counterclaim by interlineation, as follows: `That the plaintiff fraudulently refused to deliver said ears and fraudulently canceled said contract at the time it did for the sole purpose of preventing this defendant from receiving the discounts provided in said contract for the purchase of 70 or more cars by defendant under said contract and before its cancellation.' This amendment was permitted by the court over the objections of plaintiff.
"The contract in question provided, among other things, that defendant make deposit with plaintiff, and maintain same during the continuance of the agreement, but upon termination of the agreement, the balance of the deposit should be returned to defendant. Further the contract provided that plaintiff retain the right to sell automobiles manufactured by it in the territory allotted to defendant, and if it did make such sales, it was liable
under the terms thereof to pay defendant a commission thereon. A further proviso stated that the contract could be canceled by either party `without cause, upon 10 days' written notice mailed to the other party, provided, however, that for any violation thereof, by either party, the other party may terminate this agreement immediately on like notice.'
"The contract also provided a schedule of additional discounts as follows: That if defendant should sell four to eight cars it would be entitled to an additional discount of 1 per cent.; from 9 to 14, 2 per. cent.; 15 to 25, 3 per cent.; 25 to 34, 4 per cent.; 35 to 49, 5 per cent.; 50 to 63, 3 per cent.; 70 or more, 7 per cent. of the total number of cars sold.
"Pursuant to the contract, the life of which was one year, and up to February 29, 1013, defendant sold 34 cars. The purchase of 7 cars which defendant alleged it had orders for, if delivered, would entitle it to the per cent. additional discount provided for in the contract.
"Notice was mailed by plaintiff from Detroit. March 9, 1916, advising defendant that under the terms of the contract the same was canceled. The notice was received by defendant on March 13th, and on the 17th of March it appears Henry Wyatt, president of the Holliday Motor Car Company, accompanied by J. L. Frederick, vice president, and a Mr. Murphy, manager, went to the office of the Studebaker Corporation in Kansas City, where they talked with the manager and the attorney for said corporation about buying some more cars. Mr. Wyatt testified concerning this visit:
"`They asked what we wanted to do about the check; wouldn't sell us any cars until we settled the check. I told them we were ready to settle all of it. * * * took from my pocket * * * United States gold certificates and laid them on the table and said to Mr. Spencer and Mr. Rogers, "I want to tender you this money for six cars," naming the cars. * * * "I tender this money in payment of them, the amount due you under the check, 2,368 check, and you deliver to me these cars," figured the discount we were entitled to, and $6,800 would more than pay for the six automobiles I was tendering the money for, and the $2,369 check. When I put the money on the table, made the tender, Mr. Rogers (the attorney) grabbed Spencer (the manager) by the arm and said, "Get out of here," and they went out. We sat in the room in the private office 15 minutes. Nobody came in, and we got up and walked out and left.'
"It appears that the cash tender above referred to was $5,800 and not $6,800, as mentioned by Mr. Wyatt. * * *
"Plaintiff's second contention is that the court erred in allowing defendant to recover for alleged loss of profits under a written contract, in violation of the terms of said contract, and cites section 21 of the contract, which reads:
"`Delays and Damages.—Company will use its best endeavors to deliver Studebaker automobiles to dealer in accordance with his orders, but if for any cause company shall fail to make such deliveries, or shall fail to make them within the time stated in the order, company shall not be liable for any damages by reason of such failure to deliver or delays in making deliveries, nor for any loss of profits. Company shall not be liable for any damages or...
