Texarkana Casket Co. v. Binswanger & Co., No. 140.

CourtNew York District Court
Writing for the CourtESTES
Citation3 F.2d 611
PartiesTEXARKANA CASKET CO. v. BINSWANGER & CO. OF TENNESSEE.
Decision Date31 December 1924
Docket NumberNo. 140.

3 F.2d 611 (1924)

TEXARKANA CASKET CO.
v.
BINSWANGER & CO.
OF TENNESSEE.

No. 140.

District Court, E. D. Texas, Texarkana Division.

December 31, 1924.


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.

ESTES, District Judge.

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

3 F.2d 612
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...

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1 practice notes
  • Phoenix Bit & Tool, Inc. v. Texaco Inc., No. B14-93-00158-CV
    • United States
    • Court of Appeals of Texas
    • June 9, 1994
    ...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 specific argu......
1 cases
  • Phoenix Bit & Tool, Inc. v. Texaco Inc., No. B14-93-00158-CV
    • United States
    • Court of Appeals of Texas
    • June 9, 1994
    ...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 specific argu......

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