Thomas-Bonner Co. v. Hooven, Owens & Rentschler Co., 2557.

• Decision Date: 23 August 1920
• Docket Number: 2557.
• Citation: 284 F. 377
• Parties: THOMAS-BONNER CO. v. HOOVEN, OWENS & RENTSCHLER CO.
• Court: U.S. District Court — Southern District of Ohio

284 F. 377

THOMAS-BONNER CO. v. HOOVEN, OWENS & RENTSCHLER CO.

No. 2557.

United States District Court, S.D. Ohio, Western Division.

August 23, 1920

Irving A. Fish, of Milwaukee, Wis., and Edw. P. Moulinier, of Cincinnati, Ohio, for plaintiff.

Floyd C. Williams and Stanley Shaffer, both of Cincinnati, Ohio for defendant.

SATER District Judge.

At the conclusion of all of the evidence both parties moved for a directed verdict. Judge Hollister took the case under advisement. In due course, after his sudden death, it reached me for disposition as a part of his unfinished work.

For some time prior to April, 1915, the defendant had been endeavoring to construct for marketing a patented automatic typewriter. In the April issue of System, a magazine, the defendant advertised for 17 big caliber men as sales managers to introduce its new appliance, which managers were to measure up to the following standard:

'First. They must be experienced in the organizing and handling of a selling force. made up in turn of high-grade men.

'Second. They must have strong personality-- be able to meet 'man to man' the biggest business men of this country and put our proposition before them.

'Third. They must be men of record-- able to show results in the past. We don't want 'comers'-- we want men of proved ability.

'Fourth. We want men who have some money-- not that we need another dollar for the financing of our product, but simply that we consider men who have made money and saved money best suited for our work.'

Applicants were requested to communicate to Roberts, the defendant's sales manager, their financial ability and the whole story of their accomplishments in a business way. On April 3 a letter went forward to Roberts, signed 'The Thomas-Bonner Co., C. A. Bonner, President,' in which the belief was expressed that 'our firm' measures up to the four above-mentioned standard requirements, and gave the information that the firm's business was that of manufacturers' agents, that it represented in Wisconsin and the upper peninsula of Michigan two high-class articles, one an adding machine, and that it was prepared to take on the agency for another really meritorious article and put out high-class salesmen to market it successfully. On April 23, in a letter containing somewhat fulsome praise of the new device, Roberts stated the results obtainable by its use and that the machine would do the work of five typists. He announced that the defendant was conservative and would adhere to its usual method of selecting men; that it made the men selected a part of itself and of its permanent force, having made only one or two changes in its sales force in 20 years; that exceptional growing men of proven work, who are master salesmen, were wanted; that, instead of opening branch offices of its own, it would select proper men, furnish them with machines, allow them to open their own offices, and pay them a handsome commission; and that, if a desirable applicant of creditable record could show financial strength sufficient to open up and maintain an office, and ability to carry on business successfully, the defendant would be willing to enter into a contract with him. Able men, and not money, it was stated, was what the defendant desired.

On April 29 C. A. Bonner by letter informed Roberts that he had discussed the latter's proposition 'with our sales manager and with Mr. E. D. Thomas, my partner,' and asked for the form of contract proposed, on receipt of which he would then disclose 'of what the Thomas-Bonner Company is made. ' Roberts' response was that, 'if you or your business associate can come down' to Hamilton, the terms to be embraced in a contract would be thoroughly considered. The Thomas-Bonner Company desired the agency for the Milwaukee district, if allowed 30 days to pay for the machines it would be required to buy for demonstration. On May 12 the defendant, as party of the first part, and 'the Thomas-Bonner Company, composed of C. A. Bonner, E. D. Thomas, and C. R. Thomas, of Milwaukee, Wisconsin, party of the second part,' executed a contract, the signatures to which are 'The Hooven-Owens-Rentschler Company, by C. E. Hooven, Treas.,' and 'The Thomas-Bonner Co. (party of the second part), C. A. Bonner, Pres't, E. D. Thomas, Secty. ' The duties, in so far as need be noted, imposed on the Thomas-Bonner Company, were:

'First. Diligent effort on the part of the party of the second part, in effecting sales of the Hooven automatic typewriter.

'Second. Said second party agrees to devote his entire time to the work of and incidental to making sales of the Hooven automatic typewriter.

'Third. The delivery and installation of said typewriters and accessories in the offices or place of business of the purchasers of same.

'Fourth. The proper instruction of person or persons, designated by purchasers, to learn the operation and care of the Hooven automatic typewriter and its accessories.

'Fifth. The taking care of and adjusting, also making repairs necessary when called upon to do so by purchasers, during the life of the guaranty, without charge to the purchaser.

'Sixth. The handling of all detail and clerical work connected with and incident to the proper operation of the district office.'

The company was further obligated to demonstrate the automatic typewriter and its accessories in a suitable office or salesroom; to employ a suitable person to make adjustments and repairs to such typewriter and accessories when called upon by purchasers or users in its district to do so, and to make no charge for such services or repairs made and parts furnished within such district during the period covered by the defendant's guaranty to purchasers or users, all necessary tools and parts required to maintain the required service to customers and to carry out the service guaranty to be furnished by the defendant; to abide by the selling rules or regulations of the defendant as issued from time to time, under penalty of forfeiture for violation on a 10-day written notice; to install in its office or salesroom two typewriters and their accessories for demonstration purposes and to pay for the same; to maintain the selling price of the typewriter as fixed by the defendant and to offer no discount, rebates, or other inducements that would affect the selling price, under penalty in case of violation, of forfeiture of the contract on 10 days' written notice; and to make at least six bona fide sales of typewriters each month, and on failure to do so the defendant might exercise the reserved privilege of canceling the contract on 60 days' written notice. The defendant agreed to do all advertising for the introduction of the device, furnishing the company, without charge, all pamphlets, catalogues, booklets, and other literature produced from time to time; to furnish without expense to the company all letter heads, envelopes, and other printed stationery necessary for the agency's business; to deliver to the company typewriters and accessories required by bona fide orders taken on sales order blanks furnished by defendant; to make all collections, 'etc.,' in connection with sales of typewriters made by the company, the company, however, to assist whenever possible in effecting prompt collection on accounts made in its territory; to pay a 25 per cent. commission on all sales made by the company which were accepted by the defendant; to help the company in every possible manner in building up a profitable and satisfactory business; and to furnish the company with the names of inquirers about the machine and to make no sales within the company's district, except as a commission is paid to the company. In case of a disagreement between the parties, the company was to resell the two machines purchased by it to defendant at the price which the company paid defendant for the same. The contract was to remain in force from year to year, if the company complied with its terms.

From the foregoing it is clear that the defendant corporation knowingly contracted with the Thomas-Bonner Company as a partnership. The petition charges and the answer admits that the company was a partnership when the contract was made. Bonner's first letter apprised Roberts that he was writing for a 'firm.' The word 'firm' is synonymous with 'partnership.' Bouvier's Law Dict. title 'Firm'; 3 Words and Phrases Jud. Def. 2820. His letter of April 29 told Roberts that Bonner and E. D. Thomas were partners. The mention in Roberts' letter of Bonner's 'business associate' shows that he recognized that he was dealing with a partnership. The contract, when executed, brought to the defendant's knowledge the existence of a third partner. From examination of the handwriting of the signers and of the written portions of the contract, taken in connection with Roberts' letter of May 12, the conclusion seems necessarily to follow that all of such written portions were inserted in the printed froms at Hamilton, Ohio, before the two copies were sent to Milwaukee, and that the defendant consequently knew, before the contract was drawn, the names of all of the partners. Were it not so, it is not probable that the company would have been requested to return to Hamilton but one copy of the executed contract.

Importance cannot be rightfully attached to the fact that the party of the second part is referred to in the contract by the pronoun 'his,' instead of 'its,' or 'their.' The contract is on a printed form, prepared on the theory that it would be used in dealing with a single individual. The manifest intention of the parties cannot be overthrown by their nonobservance of a grammatical error. The contract pledged the entire time of the firm, and consequently of the individuals composing it, to the...