Willcox Gibbsco v. Ewing

• Decision Date: 16 November 1891
• Docket Number: SEWING-MACH
• Citation: 12 S.Ct. 94,35 L.Ed. 882,141 U.S. 627
• Parties: WILLCOX & GIBBSCO. v. EWING
• Court: U.S. Supreme Court

141 U.S. 627

12 S.Ct. 94

35 L.Ed. 882

WILLCOX & GIBBS SEWING-MACH. CO. v. EWING.

November 16, 1891.

Action by Daniel S. Ewing against the Willcox & Gibbs Sewing-Machine Company for breach of contract. There was judgment for plaintiff on the verdict of a jury, and defendant brings error.

The facts of the case fully appear in the following statement by Mr. Justice HARLAN:

This writ of error brings up for review a judgment based upon a verdict for $15,000 as the damages which a jury found were sustained by the defendant in error, Ewing, on account of an alleged breach of a written contract between him and the Willcox & Gibbs Sewing-Machine Company, the plaintiff in error, of date October 15, 1874. The case depends upon the construction of that contract.

On the 16th of May, 1867, the parties entered into a written agreement reciting that the company's 'agency' for Philadelphia and vicinity had been conducted by Ewing, and that a settlement of accounts had been made whereby the assets of such agency had been transferred to him. In view of that settlement, and to secure the interests of both parties, it was agreed, for considerations mutually satisfactory, that the company should furnish Ewing such Willcox & Gibbs sewing-machines as he might order, at a discount of 40 per cent. from its list price, so long as the list remained unchanged, and $3 per machine in addition to that 40 per cent.; that whenever the price was changed due notice was to be given Ewing, and a discount made upon the basis of the then cost of a machine to the company and its then retail price, which should bear the same proportion that the above discount and $3 per machine bore to such cost and retail price; and that parts of and attachments to the machines should be furnished at a discount of 40 per cent., and cabinet work, needles, and any attachments that cost the company more than 60 per cent. of their retail price, at net cost. In consideration of the premises Ewing agreed to continue the business then established in Philadelphia of the sale of these sewing-machines, and, in good faith, to devote his entire time and energy to its advancement and improvement, and to the increase of the sale of the machines, as fully and energetically as he had done the previous year; and so long as he faithfully did so, and in good faith kept at least the sum of $25,000 actively employed therein, the company 'agreed to continue, and in equal good faith carry out, all the provisions' of the agreement.

The company agreed to convey to Ewing, by proper writing, the lease of the property in Philadelphia in which the business was then carried on, to be used for the purposes stated in the contract. In consideration of the premises, and so long as Ewing faithfully performed the agreement on his part, he was to have the exclusive sale of the Willcox & Gibbs sewing-machine, its attachments and parts, in certain defined portions of Pennsylvania, New Jersey, West Virginia, and Ohio; the company reserving the right to sell their machines and accessories at their retail prices only to go into such territory. It was also provided that 'the agency, or, in other words, the interest in the Willcox & Gibbs sewing-machine business' conveyed to Ewing, was not to be sold or assigned by him without the company's consent, but such consent was to be given if the party was acceptable to it.

On the day of the execution of the above agreement the company gave this receipt: 'Received from Daniel S. Ewing, of Philadelphia, twenty-five thousand three hundred and ninety-eight 48-100 dollars, which is the balance due this company from the Philadelphia office to the 15th inst., the payment of which by the said D. S. Ewing transfers to him all our interest in the stock, fixtures, book ac., etc., of said office.'

Under the date of October 15, 1874, the parties signed a memorandum, in which it was stipulated that a new agreement should be entered into between them containing certain specified terms, 'the making of which it is hereby understood shall nullify all former contracts and agreements made prior' to that date. This writing closed with these words: 'Above is substantially our mutual understanding of what the new contract is to be.' On the same day the new contract—the one in suit—was reduced to writing and signed. It does not vary from the memorandum of the same date in any respect material to the present controversy. As the case depends upon the construction of the last agreement, it is given in full, as follows:

'This agreement, made and entered into this fifteenth day of October, one thousand eight tundred and seventy-four, by and between the Willcox and Gibbs Sewing-Machine Company, a corporation duly organized under the laws of the state of New York, of the first part, and Daniel S. Ewing, of the city of Philadelphia, Penn., of the second part, witnesseth 'The first party hereby appoints, subject to conditions hereinafter expressed, the second party its exclusive vendor for its sewing-machines, parts, and attachments, in and for the following-named territory, to-wit, the city of Philadelphia, Pa., and the adjacent country lying within a radius of ten miles from the city-hall of said city. The second party hereby Penn., of the second part, withnesseth: will sell for the present to second party its sewing-machines and parts thereof at 60 per cent. discount from its present New York retail price list, and its needles, attachments, silk, and cotton at its lowest wholesale rates. In the event of a change (the liberty to effect which is not herein intended to be restricted) in retail prices or of a general revision of discounts by first party, the second party is to be as favorably considered then in the readjusting and fixing of discount rates to him as is extended to him on present basis of prices. All bills owing from second to first party shall be paid in cash 30 days from date of same. The first party will not knowingly supply its goods at a discount to go within the limits of territory hereby assigned; but the first party reserves the right always to sell its sewing-machines, parts, and accessories, at full retail rates, to go anywhere. The established retail prices of first party are to be maintained for retail trade, and the second party is bound to sustain them, and will bind all subvendors or agents of his to sustain said established retail prices. Second party will be allowed to fill orders from any locality at full list rates, but trade must not be solicited by his connivance or consent in the territory of other agents, and discounts or any equivalent device therefor must not be allowed in any form on articles herein specified, permitted to go out of his own territory. Machines or parts, needles or attachments, counterfeiting, infringing, or in any degree trespassing upon ours, nor in any effect trading upon our name, must not be dealt in nor countenanced by second party, but it is hereby agreed that his time, attention, and abilities must primarily be devoted to the forwarding of the...