Sterling Organ Co. v. House.

• Decision Date: 15 November 1884
• Citation: Sterling Organ Co. v. House., 25 W.Va. 64 (W. Va. 1884)
• Court: West Virginia Supreme Court
• Parties: Sterling Organ Co. v. House.

25 W.Va. 64

Sterling Organ Co.

v.House.

Supreme Court of Appeals of West Virginia.

Submitted June 6, 1884

Decided November 15, 1884.

1. A., a manufacturer of organs, enters into an agreement with B., whereby B. is to engage in the business of selling organs manufactured by A. and is to introduce them into use in a given territory, and A. is to furnish him, whenever he may need organs for re-sale in this territory, with all the organs he may need for this purpose, selling them tohim at reasonable rates, this arrange-ment to continue so long as either party choose and till the party desiring to put an end to this arrangement shall give to the other reasonable notice of his purpose of terminating such arrangement. A., the manufacturer, violates this agree ment by refusing to furnish B. with organs that he needed for re-sale in this territory, without having first given to B. reasonable notice of his purpose to terminate the arrangement, whereby B. suffered damages. A., the manufacturer, then sues B. for the price of certain organs which he had purchased of A. under this arrangement, and which B. had not paid lor. The action brought was an action of assumpsit. HELD:

I. The defendant could not, under section 5 of chapter 128 of Code of W. Va. file a special plea alleging any failure in the consideration of the contract sued upon, as the contracts sued upon were those made in the purchase of the several organs, which had not been paid for.

II. The defendant could not, independent of this statute, file at common law a special plea to Lave the damages, which be sustained by the breach of this agreement, recouped against the amount due to the plaintiffs on the organs purchased.

III. The defendant had a right to have the damages he thus sustained recouped against the plaintiff's claim on the trial of the general issue of non asmimpsit, provided he filed with his plea of non assumpsit a notice, that on the trial of the case he would claim to have the damages, which he had sustained by the plaintiffs' breach of the agreement, recouped. (p. 79.)

2. Such an agreement is a valid one, though but verbal, as it does not come within the statute of frauds requiring an agreement, which is not to be performed within a year, to be in writing. (p. 97.)

3. In the case stated in syllabus 1 the agreement is violated by the refusal of the manufacturer A. to sell and deliver to B. certain organs which B. wanted for the purpose of resale in the specified territory, A., not having given to B. the reasonable notice required by the agreement before he put an end to their arrangement. When the agreement was thus violated, B. asked A. to sell and deliver to him ten organs at once for his immediate need. A. without in any way replying to this request sent pursuant to this order of B three of the ten organs, which B. had so ordered, and B. supposing that the other seven organs would speedily arrive, continued the men and wagons and horses, which he had employed in selling and delivering organs, in his employment for a week at his own expense, these men and wagons and horses being idle during this week. In the recoupment of damages for this breach of his agreement by the plaintiff, if the jury believe from the evidence, that, had these seven organs been sold and delivered promptly by the plaintiff, A. to the defendant, B., they would all have been sold and delivered to persons B. or his agents had seen and had a prospect of selling to before B. ordered them, during the week that his men and wagons were idle and without any additional expense beyond what he, B., actually incurred, the true measure of the defendant, B's. damages to be recouped is the difference between the cost of these seven organs, had they been sold and delivered promptly by A., and the price, which B. would have recovered for them, if he had delivered them to the purchasers from him. (p. 91.)

4. In order that a contract may be regarded as having been made with reference to a usage of trade, such usage must be certain, general, known, reasonable and not repugnant to the contract or the rules of law; and if such a usage is proposed to be proven, and it appears to the court that it is unreasonable or repugnant to the contract or to the rules of law, the court may properly exclude such proo from going to the jury. (p. 96.)

5. A rule of a circuit court "that instructions to a jury will not be entertained or considered, unless submitted before the conclusion of the argument of the case," is a reasonable rule and tends to the promotion of justice and should be enforced, unless in a particular case there exist peculiar circumstances, which would render the enforcement of this rule unjust to one of the parties, and in such a case the court ought to disregard the rule and grant or refuse Instructions, though asked too late under the rule (p. 97.)

Green, Judge, furnishes the following statement of the case:

On November 24, 1882, the Sterling Organ Company, a corporation ot the State of Connecticut, brought an action of assumpsit in the circuit court ot Ohio county, West Virginia, against C. A. House. The declaration contained the common counts only for work and labor, for goods sold and delivered, for monies lent and advanced to and paid, laid out and expended for the defendant, tor monies had and received by the defendant for the use of the plaintiff, and a general indebitatus assumpsit count. It was in the usual form of such a declaration, and with it was filed the following bill of particulars:

" Seventeen organs bought by the defendant of the plaintiff between March 6, 1882, and April 21, 1882, at prices ranging from $43.00 to $93.00, and aggregating $1,110.50, subject to a credit of $500.00 paid April 21, 1882, leaving due $610.50 with interest from April 21, 1882."

The defendant pleaded non assumpsit, and issue was joined. He also tendered two special pleas and asked leave to file a notice of recoupment, which though objected to was allowed to be filed. The first special plea was in the following words:

" And the defendant, C. A. House, by his attorney, comes and defends the wrong and injury, &c, and for further plea says that the said plaintiff ought not to have or maintain its aforesaid action against the defendant, because, he says, that heretofore, to-wit: On the 24th day of July, 1880, plaintiff was a manufacturer of organs, and an agreement was then entered into between said plaintiff and defendant whereby, in consideration of defendant becoming the agent of the plaintiff and undertaking to buy from it organs for re-sale, as hereinafter set forth, and to introduce the said organs, manufactured by the plaintiff, in the territory hereinafter nun tioned, the said defendant was, by the plaintiff, constituted the exclusive agent of the plaintiff for the sale of its organs within certain territory, that is to say, that part of the State of West Virginia, north of the Baltimore and Ohio railroad, and including the counties through which it runs, up to the Maryland line, together with the counties of Washington and Greene, in the state of Pennsylvania, and by the said agreement, and for the consideration aforesaid, the plaintiff undertook and promised the said defendant to sell and deliver at certain fixed prices to defendant for re-sale by him within the territory aforesaid, so many of the organs made by plaintiff as defendant should need for the purpose of re-sale within said territory, for so long a time as said defendant should he successful in the business of dealing in said organs. Defendant further says, that after the making of the said agreement, said defendant, in consideration of said agreement, and in compliance with the terms thereof, bought from said plaintiff a large number of the organs so manufactured by them, and among such organs, certain organs which are the same goods and merchandise in the plaintiff's declaration mentioned as sold and delivered to defendant, and which goods and merchandise defendant says were purchased by him in consideration ot the aforesaid promise and agreement of the plaintiff Defendant further says that he afterwards, to-wit: On the said 24th day of July, 1880, and during a long period thereafter, relying on said promise and undertaking of the plaintiff, went to great labor, trouble and expense in introducing and making known the organs of plaintiff's manufacture to purchasers and others in the territory aforesaid, by means of the labor, exertions and services of the defendant himself, and ot men and teams employed by him, and other means, at an expense to defendant tor a large sum of money, that is to say, the sum of $1,000.00; and that at the time of the breach by the plaintiff, as hereinafter set forth, of its said promise and agreement, said defendant had ready in said territory men and teams employed by him at great expense to aid in the further introduction of said organs in said territory.

" Defendant says that from the time of the making of said agreement until the breach thereof on the part of the plaintiff, as hereinafter stalted, he was successful in the business of dealing in said organs, and in all things fulfilled and per- formed on his part said agreement, and but for the said breach on the part of the plaintiff, would have been from that time hitherto successful in the business of dealing in said organs.

" Defendant further says, that said plaintiff, disregarding its said promise and undertaking aforesaid, to-wit: On the 22nd day of April, 1882, refused to permit defendant to act longer as the agent of plaintiff in said territory and constituted another person, to-wit: one Hamilton, its agent, and sold, shipped and delivered to said Hamilton organs of plaintiff's manufacture for sale in said territory, and refused and failed to sell and deliver to defendant any of the organs manufactured by plaintiff. And defendant further says, that by reason of such refusal of the plaintiff, the labor and services, of defendant and...