Texarkana Casket Co. v. Binswanger & Co.
| Decision Date | 31 December 1924 |
| Docket Number | No. 140.,140. |
| Citation | 3 F.2d 611 |
| Parties | TEXARKANA CASKET CO. v. BINSWANGER & CO. OF TENNESSEE. |
| Court | New York District Court |
Keeney & Dalby and King, Mahaffey & Wheeler, all of Texarkana, Tex., for plaintiff.
Arnold & Arnold, of Texarkana, Ark., and M. E. Lesser, of Memphis, Tenn., for defendant.
The suit here is for the recovery of something more than $4,300, paid by the plaintiff to the defendant under circumstances that are alleged in substance to be as follows: The defendant, a corporation that distributes in this section the products of the Libbey-Owens Sheet Glass Company, proposed, through an accredited officer, to the managing officer of the plaintiff, to sell to the plaintiff "all of the glass that plaintiff might desire to purchase that was manufactured by the Libbey-Owens Sheet Glass Company" at prices reflected by the "regular list price" of the Libbey-Owens Company. "The defendant agreed to sell to the plaintiff all glass or glass products of the Libbey-Owens Sheet Glass Company make at the same price that said glass or glass products could be purchased from any other dealer or jobber of said glass, and offered to fill any and all orders for Libbey-Owens glass given defendant by the plaintiff at said price — that is, at the regular list price as fixed by the Libbey-Owens Sheet Glass Company for the selling price of its glass, and at the price that it could be bought by the plaintiff from other dealers or jobbers." The proposition was accepted, and the plaintiff "agreed that thereafter the plaintiff would order such glass or glass products of the Libbey-Owens make or manufacture as it desired from and through the defendant." On various dates, set out in the petition, four carloads of glass were ordered and paid for at prices that were subsequently discovered to be in excess of the Libbey-Owens list price, to the extent of the amount sued for.
The details respecting the amount of glass purchased and the excessive charge on each car are set forth in the petition, and the claim is made that in each instance more was paid than should have been paid "under the agreement" between the parties. It is alleged that such glass could have been purchased from other dealers at the list price of the Libbey-Owens Company, and that the excessive payments were made in consequence of "the representations and agreements made * * * as aforesaid, on behalf of and for the defendant; * * * that the defendant did not comply with its said agreement, * * * but that the defendant fraudulently charged and billed said various shipments of glass to the plaintiff at increased prices, as herein alleged, and the said money over and above the regular list price of said glass, which was paid by the plaintiff to the defendant, was paid without consideration, and that in law and in morals said money belongs to the plaintiff."
The answer denies the execution of the contract in question, and alleges that separate negotiations were conducted and separate contracts were executed by the parties with respect to each shipment, and that the amounts collected were in accordance with the provisions of said separate contracts. There were additional allegations and defenses pleaded, but, in view of the subsequent disposition to be made of the case, it is unnecessary to discuss the merit of them.
For the plaintiff the evidence was in substance that Mr. Krouse, the executive officer of the plaintiff, casually met, in Memphis, the manager of the defendant, and was solicited by him to order through the defendant concern such carload shipments of glass of a certain kind as plaintiff might need in the future. The representation was that the defendant had recently become a sort of distributing agency in that section for the Libbey-Owens products, and the patronage of an enterprise of the size and character of the plaintiff would inure to the defendant's benefit. For such considerations, the proposition was made to sell to the plaintiff carload lots of glass at the regular list price of the Libbey-Owens Company, and was accepted with the qualification that the plaintiff was not under obligations to order all, or even any, of the glass referred to that it might need. In other words, only such orders as the plaintiff might see fit to send were to be filled on the terms indicated; and the plaintiff did not have to, and in fact did not, buy all of its requirements for glass of the kind involved from the defendant.
The contract referred to was negotiated during the month of October, 1921. In January following the plaintiff made inquiry of the defendant respecting the price of glass of specified dimensions, was quoted a definite price, and a car was ordered on the terms thus quoted. Similar procedure was followed with respect to all of the other cars excepting the fourth, where there was no request for quotation of price, but the order was to send the goods at the current price. The plaintiff's manager, who gave these orders, testified that he thought, when the quotations were received and the orders given, that they were from the list price, as provided in the contract, and that he could have gotten glass of another make elsewhere at list prices.
The testimony in behalf of the defendant tended to sustain the allegations in the answer. The correspondence and quotations...
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Phoenix Bit & Tool, Inc. v. Texaco Inc.
...plain language of the contract reveals no mutuality of obligations. In support of this argument, Texaco cites Texarkana Casket Co. v. Binswanger & Co., 3 F.2d 611 (E.D.Tex.1924) and Streich v. General Motors Corp., 5 Ill.App.2d 485, 126 N.E.2d 389 (1955). Texaco did not expressly raise this......