Western Macaroni Mfg. Co. v. Fiore

• Decision Date: 16 September 1915
• Docket Number: 2776
• Citation: Western Macaroni Mfg. Co. v. Fiore, 47 Utah 108, 151 P. 984 (Utah 1915)
• Court: Utah Supreme Court
• Parties: WESTERN MACARONI MFG. CO. v. FIORE

151 P. 984

47 Utah 108

WESTERN MACARONI MFG. CO. v. FIORE

No. 2776

Supreme Court of Utah

September 16, 1915

Appeal from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by the Western Macaroni Manufacturing Company against Saverio Fiore.

Judgment for plaintiff.Defendant appeals.

AFFIRMED.

Weber &amp Olson, for appellant.

Allen T. Sanford, for respondent.

STRAUPC. J. McCARTY, J., FRICK, J., concurring.

OPINION

STRAUP, C. J.

The plaintiff and the defendant, at Salt Lake City, entered into this contract:

"This agreement made and entered into this 18th day of September, A.D. 1911, by and between the Western Macaroni Company, incorporated, of the first part, and Saverio Fiore, of the second part, both of Salt Lake City, Utah witnesseth: That, in consideration of the exclusive purchase from first party by second party of all domestic macaroni that second party may handle in any way in his business as a retail dealer in said Salt Lake City, Utah and in consideration of the mutual benefits to each moving, it is agreed on the part of the first party that it will for and during two years hence after this date furnish and sell to second party, at regular and wholesale prices the same as charged to other retail dealers, such quantities of macaroni as second party may require in his business, in boxes containing about eighteen pounds net weight, and of quality satisfactory to second party and in consideration of the premises the first party agrees not to sell to any private consumer or to any boarding house keeper in or out of the State of Utah and also agrees not to sell to any other proprietor of an Italian store in Salt Lake City, Utah directly or indirectly, any of its product without the consent of second party, and in default or violation thereof undertakes and agrees to pay to second party the sum of five hundred dollars ($ 500.00) as damages, in the premises, and second party on his part agrees to buy from first party exclusively as above is suggested as the consideration hereof."

The court found:

"That, in accordance with the terms of said contract the plaintiff sold and delivered to the defendant at Salt Lake City, Utah during the months of July and August, 1912, macaroni of the value and contract price of $ 500, and said defendant has paid no part of said account and has refused to pay the same.

"That on or about the 24th day of August, 1912, the plaintiff, in violation of the terms of said contract, refused to furnish to the defendant macaroni which at that time was ordered by the defendant, and refused to furnish to the defendant any macaroni whatsoever, although the defendant demanded the same, and that by reason of the plaintiff's wrongful refusal to sell and deliver macaroni to the defendant it was necessary for the defendant to buy his macaroni elsewhere, and that during the remainder of the period of said contract the defendant needed for his business as was contemplated under the terms of said contract 1,500 boxes of macaroni, and the defendant was required to pay more for said macaroni, to his damage in the sum of $ 90.

"That the plaintiff did not sell merchantable macaroni to private consumers and boarding house keepers, though it did sell broken macaroni, as is usual and customary for the same to be sold, to private consumers, the same not being recognized on the market as merchantable macaroni, and the said plaintiff has sold macaroni to other Italian grocery stores in Salt Lake City, but has not sold any macaroni to any Italian stores in Salt Lake City to which the defendant had been selling macaroni, and the $ 500 damages provided to be paid under said contract were for punitive, and not liquidated damages."

Judgment was thereupon rendered for the plaintiff for $ 500, less $ 90, and interest on that difference.The defendant appeals.His contention is that the $ 500 specified as damages in the contract "should be regarded as fixed and ascertained damages, and not as a penalty," and that when the court found that the plaintiff sold macaroni, though broken, to private consumers, it ought to have allowed the defendant $ 500 damages without proof of damages and regardless of the question of actual damages.The court, as seen, regarded the sum specified as a penalty, and awarded the defendant only his actual proven damages.That is the defendant's chief complaint.The respondent defends the ruling on two grounds: First, that the contract is ineffectual because it is not mutual; and, second, if the contract is mutual and valid, the court properly regarded the sum specified as a penalty, and not as liquidated damages.It is claimed that the contract is not mutual, because there is "no obligation assumed by, nor imposed upon, the defendant."We think the respondent in error as to this.We think the fair meaning of the agreement is that the plaintiff, for a limited...