Turner v. Mellier

• Decision Date: 31 March 1875
• Citation: 59 Mo. 526
• Parties: LOUIS TURNER, Respondent, v. A. A. MELLIER, Appellant.
• Court: Missouri Supreme Court

59 Mo. 526

LOUIS TURNER, Respondent,

v.A. A. MELLIER, Appellant.

Supreme Court of Missouri.

March Term, 1875.

Appeal from St. Louis Circuit Court.

M. Kinealy, for Appellant.

The covenants of the seventh clause are independent both of the covenants of the fourth and fifth; and the breach of the seventh could be compensated for in damages, and in no way embarrassed plaintiff in fulfilling the conditions of the fourth or fifth clauses. (Mill-dam Foundry vs. Hovey, 21 Pick., 417; Payne vs. Bettisworth, 2 A. K. Marsh., 427; Morrison vs. Galloway, 2 Harris & J., 461; Todd vs. Summers, 2 Gratt., 167; Bennett vs. Pixley, 7 Johns., 249; Keenan vs. Brown, 21 Vt., 86; Butler vs. Manny, 52 Mo., 506; Fother gill vs. Walton, 2 Moore, 630; 2 Pars. Cont., 527.)

Lee & Adams, for Respondent.

VORIES, Judge, delivered the opinion of the court.

This action was founded upon a written agreement executed by plaintiff and defendant on the 15th day of March, 1871, which was to the following effect:

“First, the said Louis Turner, for certain considerations after named, doth hereby appoint and constitute A. A. Mellier his only wholesale and general agent for the sale of his proprietary medicines known as “Turner's Specific Wonder and Turner's Liver and Blood Pills.”

“Second, the party of the first part shall advertise the said A. A. Mellier as his only agent, in his circulars, on his traveling wagons and in all advertisements wherein said medicines are brought before the public.”

“Third, the party of the first part shall not himself sell or permit his agents, while traveling, to sell to any dealer or other parties more than six dozen of the so called “Turner's Wonder” or Pills, in any one town they may visit, but shall refer all dealers beyond the quantities above named, for their supplies, to the party of the second part.”

“Fourth, it is further agreed, that the said Louis Turner will turn over all orders that may be received by him at his office in the city of St. Louis or from any other quarter, for any of his medicines, to be filled by the party of the second part.”

“Fifth, the party of the first part agrees, also, to buy all the crude materials, used in the manufacture of his medicines, from the party of the second part; Provided, all such articles shall be sold to him as cheap as can be bought elsewhere.”

“Sixth, in consideration whereof, the said A. A. Mellier doth bind himself to take of the party of the first part, by the 15th day of May, 1871, thirty gross of Turner's “Specific Wonder,” “large,” for which he is to pay two thousand dollars, all of which is to be invested in wagons, horses, harness, and other appurtenances thereunto belonging, said teams, etc., to be used for the sole purpose of advertising and furthering the sale of said medicines.”

“Seventh, it is also agreed that all future purchases of Turner's medicines by the party of the second part shall be as follows: Large size ‘Wonder’ at the rate of six dollars per dozen; small ‘Wonder’ and Pills at three dollars per dozen each, to be paid for as follows, viz: one half cash, balance in such articles as can e used in the manufacture of the ‘Wonder’ and Pills. The party of the second part is not to be considered bound to take any given quantity, but it shall be left to his discretion to make it either more or less, as circumstances may warrant. He however pledges himself to the party of the first part to keep an ample supply of said medicines on hand sufficient to supply all demands.”

“Eighth, it is also agreed that all settlements of the parties to this contract shall be made the first day of July and January of each year.”

“Ninth, this contract to go into effect from date, and remain in full force until July 1st, 1872.”

The plaintiff, after stating in his petition that he had at all times fully performed all of the provisions of the said contract, on his part to be performed, avers as a breach of the contract on the part of the defendant, substantially the following: That by virtue of the provisions of the seventh clause of said contract the plaintiff furnished to the defendant, at sundry times, the medicines referred to in said seventh clause amounting in the aggregate to $2047.77; that on or about the 17th January, 1872, plaintiff made frequent demands upon defendant for articles used in the manufacture of said medicines, and that he also demanded money of said defendant in payment for the medicines so received by him under said contract, but that defendant refused to pay plaintiff for said medicines, either in materials, etc., or in money, the balance due plaintiff.

The petition alleges that there were, at said time, two hundred and fifty-five dollars due plaintiff for said medicines thus delivered after allowing defendant for all payments or credits thereon, and for which judgment was prayed, etc.

The defendant denied that plaintiff had performed the provisions of the contract on his part, and also denied the breach of the contract charged against said defendant by the plaintiff.

The defendant then set up by way of counter-claim to the plaintiff's action that he had performed the contract on his part, but that plaintiff had failed to perform the provisions of the contract on his part, to be performed, in this; that contrary to the provisions of the fourth clause and article of said contract, plaintiff during the existence of said contract, and prior to the first day of January, 1872, failed and refused to turn over orders received by him, at his office in St. Louis and from other quarters, for his medicines, to be filled by defendant, but that plaintiff had himself filled said orders and sold said medicines to the amount of seven thousand dollars, upon which the profits to defendant would have been one thousand dollars; for which defendant prays judgment. The defendant also set up a similar breach on the part of plaintiff to the third clause of said contract, for which damages were claimed in the sum of six hundred dollars; for which judgment was also claimed. Issues were made on defendant's answer.

The evidence in the case tends to prove the issues on the part of each of the respective parties.

The court instructed the jury on the part of the plaintiff as follows:

1. “If the jury find for the plaintiff they will assess his damages to be such sum as they shall find is due plaintiff after deducting the payments made by defendant, either in cash or in materials, from the whole amount due plaintiff for medicines furnished defendant at the price named in said contract.”

2. “If the jury believe from the evidence that, on or about the 18th day of January, 1872, the plaintiff had delivered to the defendant the medicines mentioned in said contract, and that plaintiff had not been fully paid therefor; that plaintiff demanded of the defendant certain materials used in the manufacture of said medicines; and that he also demanded money of defendant; that defendant refused to furnish plaintiff with all of said materials or with money, then the jury will find for the plaintiff, unless they shall believe from the evidence that plaintiff was guilty of some substantial breach of said contract on his part.”

3. “The jury are instructed, that by the terms of the contract between plaintiff and defendant, the plaintiff was not bound to purchase the materials, entering into the composition of his medicines, of defendant, unless he could buy them as cheap as he could buy elsewhere, and if the jury believe from the evidence that the plaintiff could purchase the materials entering into the composition of pills cheaper from Werrell, then he had the right to purchase same from him.”

These instructions were severally objected to by defendant, and his objections being overruled he excepted.

The court then, at the instance of the defendant, instructed the jury as follows:

1. “The court instructs the jury that, if defendant supplied plaintiff on his demand with the materials used in the manufacture of said ‘Wonder’ in the proportions in which said materials entered into the composition of said “Wonder', and was ready and offered to supply all of said materials, which he agreed to supply, in said proportions, then defendant has complied with the requirements of the 7th clause of said contract.”

4. “Unless the jury believe from the evidence under the instructions of the court that defendant has not complied with the requirements of his contract under the seventh clause of said contract, plaintiff cannot recover in this action.”

The defendant also asked the court to give the jury the following instructions, to-wit:

2. “If the jury believe from the evidence that plaintiff after the date of said contract, and prior to July 1st, 1872, proceeded to fill orders for or to sell or dispose of any of said medicines to any person other than defendant, without the knowledge and consent of defendant, and did not turn over such orders or sales to defendant, then defendant is entitled to recover what from the evidence appears a fair reasonable profit on the amount of goods so sold or disposed of by plaintiff, not exceeding one thousand dollars, deducting what plaintiff may recover for medicines furnished, if any.”

3. “If the jury believe from the evidence that plaintiff, after the date of said contract and prior to July 1st, 1872, failed or refused to purchase crude materials, used by him in the manufacture of his medicines, from defendant, which he could have bought from defendant as cheaply as elsewhere, defendant is entitled to recover as damages for said failure such amount not exceeding $750, as the jury may believe from the evidence was the fair reasonable profit on the said materials used by plaintiff between said times.”

The court refused to give the jury the two last named instructions as asked for by the defendant, but added to each of said instructions the following: “Provided, the defendant was ready and willing to comply with his part of the contract,” and then gave the said instructions to the...