Weeter v. Reynolds

• Decision Date: 13 January 1930
• Docket Number: 5270
• Citation: 48 Idaho 611,284 P. 257
• Parties: J. C. WEETER, Appellant, v. R. A. REYNOLDS and C. L. REYNOLDS, Individually and as Copartners, Doing Business Under the Firm Name and Style of REYNOLDS BROS. CO., REYNOLDS AUTOMOBILE CO., and REO SALES COMPANY, Respondents
• Court: Idaho Supreme Court

284 P. 257

48 Idaho 611

J. C. WEETER, Appellant, v. R. A. REYNOLDS and C. L. REYNOLDS, Individually and as Copartners, Doing Business Under the Firm Name and Style of REYNOLDS BROS. CO., REYNOLDS AUTOMOBILE CO., and REO SALES COMPANY, Respondents

No. 5270

Supreme Court of Idaho

January 13, 1930

SALES - CONSTRUCTION OF PARTLY PRINTED AND TYPEWRITTEN CONTRACT-CONTRACTS-RESCISSION-REMEDIES-TENDER OF PERFORMANCE-AFFIRMATIVE RELIEF-CROSS-COMPLAINT.

1. Typewritten parts of contract between distributor and dealer for sale of automobiles control the printed parts, under C S., sec. 5669.

2. In action by automobile distributor against dealer to recover purchase price of automobile sold under dealer's contract, dealer, under C. S., sec. 6699, could file cross-complaint to recover additional discount for selling a certain number of automobiles as provided in contract and also for amount expended for tires and equipment placed on truck purchased under contract.

3. Where, some three months before dealer's contract between distributor and dealer would have expired, distributor notified dealer that manufacturer had canceled its contract with distributor and that distributor was discontinuing the handling of line of automobiles contracted for, it was unnecessary for dealer to make further demand for performance by distributor.

4. Where, some three months before dealer's contract between distributor and dealer would have expired, distributor notified dealer that manufacturer had canceled its contract with distributor and that it was discontinuing the handling of that line of automobiles, before dealer had sold number of automobiles entitling it to additional discount under terms of contract, dealer held entitled to proportionate amount of discount based on number of automobiles they had purchased before their contract with distributor was canceled, notwithstanding provision in dealer's contract to effect that it was subject to terms and conditions of agreement between manufacturer and distributor.

5. Party who rescinds an agreement must place the opposite party in statu quo.

6. Where one party repudiates contract and refuses longer to be bound by it, one of remedies of the other party is to treat contract as rescinded and recover upon quantum meruit as far as he has performed.

7. After breach of a contract has given rise to cause of action rights of innocent party are not affected by an offer to perform by party who has broken contract.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. W. A. Babcock, Judge.

Action for purchase price of automobile. Judgment for plaintiff reduced in amount by verdict for defendants under cross-complaint. Affirmed.

Judgment affirmed. Costs to respondents.

Bothwell & Chapman, for Appellant.

In order to put a seller in default for nondelivery a demand on the part of the buyer is necessary when the obligations of the parties are concurrent, or the goods are deliverable at the request of the buyer, or if the buyer is given the option to designate the quantity, size, quality, etc., of the articles, or if the contract provides that shipment shall be made at such time as the buyer may direct and there is no default on the part of the seller in the absence of demand. (35 Cyc. 165, 166; Monumental Brewing Co. v. Southern Rice Milling Co., 155 La. 454, 99 So. 401; Millikin Tomlinson Co. v. American Sugar Refining Co., 9 F.2d 209; Hinckley v. Pittsburgh Bessemer Steel Co., 121 U.S. 264, 7 S.Ct. 875, 30 L.Ed. 967; Salmon v. Helena Box Co., 158 F. 300, 85 C. C. A. 551; In re Millbourne Mills Co., 165 F. 109; Central Lumber & Mfg. Co. v. Reyburn, (Mo. App.) 195 S.W. 576; J. M. Guffey Petroleum Co. v. Vicksburg Waterworks Co., 89 Miss. 238, 42 So. 284; Sumwalt Ice & Coal Co. v. Knickerbocker Ice Co., 112 N.D. 437, 77 A. 56.)

A cross-complaint is permissible in an action only when a defendant seeks affirmative relief against any party relating to or depending upon the contract or transaction upon which the action is brought, or affecting the property to which the action relates, and if a defendant attempts to go beyond this and to introduce by cross-complaint new and distinct matter which does not grow out of that involved in the complaint, and which is not essential to the proper determination of it, although it may show a perfect case against the plaintiff, his pleading will not be a cross-complaint, but an original and independent cause of action, and as such is not germane to the issue, and should be dismissed on demurrer. (C. S., sec. 6699; Hunter v. Porter, 10 Idaho 72, 77 P. 434; Cuneo v. Lawson, 203 Cal. 190, 263 P. 530; Mahan v. Millar, 56 Cal.App. 280, 205 P. 67; Damron v. Sowards, 203 Ky. 211, 261 S.W. 1093.)

W. D. Gillis, for Respondents.

The court did not err in overruling the demurrer to respondents' cross-complaints. They related to and were dependent on the contract involved and under which appellant sought to recover on open account for the price of an automobile. (Hodgkin v. Williams, 126 Cal. 591, 77 Am. St. 209, 59 P. 36; Murphy v. Russell & Co., 8 Idaho 151, 67 P. 427; Imperial Water Co. v. Meserve, 62 Cal.App. 603, 217 P. 553.)

Where one party abandons a contract and refuses further performance, the other party is entitled to rescind. He is not, however, bound to rescind but may keep the contract alive and sue upon it for a breach, or he may adopt the middle course and treat the contract as at an end for the purposes of further performance but as still alive for the purpose of adjusting the rights of the parties to the breach. (13 C. J. 615, sec. 668; United Press Assn. v. National Newspaper Assn., 237 F. 547, 150 C. C. A. 429.)

Where the acts of one party to a contract are such as necessarily prevent the other from performing the contract, the party thus prevented may abandon and rescind the contract and recover on a quantum meruit. (Spaulding v. Coeur d'Alene Ry. Co., 5 Idaho 528, 536, 51 P. 408; McDaniels v. Harrington, 80 Ore. 628, 157 P. 1068; Ross v. Tabor, 53 Cal.App. 605, 200 P. 971, 973.)

BUDGE, J. Givens, C. J., and T. Bailey Lee and Varian, JJ., concur.

OPINION

BUDGE, J.

This action was instituted by appellant, as assignee, to recover the purchase price of an automobile sold and delivered to respondents by the Weeter Motor Company in September, 1926.

Under the terms of a contract, dated February 12, 1926, entered into with the Weeter Motor Company, therein denominated the "distributor" and hereinafter referred to as such, respondents became "dealer" for "new Reo motor vehicles of current models and parts therefor." The contract provided, inter alia, that the dealer be allowed, in addition to a discount of twenty per cent from the list price of vehicles purchased, an additional discount of four per cent provided the dealer attained "a volume of 25 units within one year from date." In a cross-complaint filed by them respondents claimed an amount due under the four per cent discount clause of the contract, as well as a sum for tire replacements made by them on an automobile purchased under the contract.

The cause was tried to a jury by which a verdict was returned finding in effect that appellant was entitled to a recovery for the price of the automobile sold and delivered to respondents, and that respondents were entitled to offsets under their cross-complaint, the amount of which, deducted from that found for appellant, left a balance in appellant's favor of $ 83.29. The appeal is prosecuted by appellant from the judgment entered on the verdict.

In so far as a consideration of the written contract is...