VANCE v. FORTY-EIGHT STAR MILL
| Decision Date | 05 April 1950 |
| Docket Number | No. 5203,5203 |
| Citation | 215 P.2d 1016,54 N.M. 144 |
| Parties | VANCE et al. v. FORTY-EIGHT STAR MILL et al. |
| Court | New Mexico Supreme Court |
Hannett & Hannett, Albuquerque, for appellants.
Ernest A. Polansky, Albuquerque, Robert B. Bennett, Albuquerque, for appellees.
This is a suit on contract by which appellee, Harry v. Vance, assignee of J. M. Igoe, sought to recover $3,032.81 for merchandise allegedly sold and delivered to appellants. By motion, appellee J. M. Igoe was made a party plaintiff. By counterclaim, Igoe sought to recover $1,000.00, for breach of contract. Appellants answered and counterclaimed. By answer they assert that they refused to pay for the merchandise delivered because appelleeIgoe had breached the contract and that they tendered to him all merchandise received by them. By counterclaim they sought to recover $1,000.00 for his breach of contract.
The case was tried to the court without a jury and at the conclusion of the hearing, judgment was rendered in favor of appellee Vance for $3,032.81, and in favor of Igoe on appellants' counterclaim and in favor of appellants on Igoe's counterclaim. Appellants appeal from that part of the judgment awarding appellee Vance $3,032.81.
The essential findings are:
1. That on the 20th of February, 1946, the defendant's ordered in writing from the plaintiff, J. M. Igoe, goods, wares, and merchandise. That by the terms of the written orders the exact quantity of merchandise was stated and the total value of said merchandise was $6,340.67 as appears from the written orders signed by the defendants, acting through their duly authorized agent, and accepted by the plaintiff Igoe. Said merchandise consisted of oil and lubricants and said order specifically described the number and the kind of containers that such merchandise was to be shipped in to the defendants.
2. That thereafter, on the 16th of March, 1946, the defendant, Forty-eight Star Mill, entered into a Jobber Agreement with the Alemite Company in words and figures as follows:
Now Therefore, in consideration of the mutual covenants hereinafter set forth, and other good and valuable consideration, the Seller hereby agrees to buy certain Alemite products at the prices and on the terms hereinafter specified:
1. The seller agrees to sell, and the Buyer agrees to buy such products at the established jobbers' discounts, from established list prices.
2. The Buyer agrees to maintain a representative amount of Alemite products on display and in stock at all times.
3. The Buyer further covenants that he will not engage in the sale or distribution (directly or indirectly) of any other high pressure lubricating system consisting of fittings, compressor and hose either for original equipment or for replacement under the guise of repairs or otherwise, which are in violation of the patent rights of (Alemite Division) Stewart-Warner Corporation.
4. Either of the parties hereto shall have the right to cancel this contract upon giving five (5) days' written notice thereof to the other party hereto. * * *
In Witness Whereof, the parties hereto have caused this agreement to be duly executed in triplicate on the day and year first above written.
Alemite Company of El Paso (Distributor)
By (signed) J. M. Igoe Gen. Mgr.
Its __________
(Seal)
By Harris R. Newman, Manager'
* * *
3. That in the month of May, 1946, plaintiff Igoe shipped to the defendants a portion of the goods, wares, and merchandise contracted to be delivered to the defendants to the value of $3,032.81.
5. That the merchandise actually received by the defendant was placed in its warehouse and said defendant made noobjection in writing or otherwise to the plaintiff Igoe until request was made by the agent of the plaintiff Igoe that the defendant pay for the merchandise.
6. That plaintiff Igoe, prior to the refusal of the defendant to pay for the merchandiseactually delivered, offered to ship a substitute for the oil not delivered, but received no communication from the defendant in reply to this offer.
7. That the defendant bore the relationship of jobber to the plaintiff Igoe.
Appellants tendered findings of fact and conclusions of law, the refusal of which is assigned as error.
It seems that it would be helpful to a proper understanding of the case to discuss the evidence briefly. Appellee Igoe, operated out of El Paso, Texas, as a distributor for Stewart-Warner Products, consisting of lubricants, petroleum and Alemite products. Appellants compose a partnership operating in Albuquerque, New Mexico, under the trade name, Forty-eight Star Mill. Previously, they operated a flour and feed mill but were interested in extending their business. On February 20, 1946, Igoe's agent contracted them with the view of their becoming distributors or brokers of the Stewart-Warner Company in the Albuquerque area. The products and policies of the company were explained and presently an agreement was entered into. Pursuant to this agreement, appellants placed acceptable orders for merchandise, articles and prices being stated. separately, amounting to $6,340.67. Prior to shipment of any of the products, a formal jobbers contract was signed by them. Thereafter, Igoe sent the orders to his wholesale house. The wholesaler, at the time, was unable to fill the orders, particularly Pennsylvania oils in quart cans. On April 29, 1946, Igoe advised appellants by letter that Pennsylvania oil in quart cans was not available and offered to supply other oils of equal value, in quart cans. Appellants did not reply to this letter. About May 1st, 1946, Igoe shipped the order, less Pennsylvania oil in quart cans, amounting to $3,032.81. Shortly thereafter, the merchandise was received by appellants and stored in their warehouse in Albuquerque. They made no attempt to sell any of it. Igoe's agent called upon them in an effort to have the...
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