Hotchkiss v. Nelson R. Thomas Agency, Inc.

WILSON, J.

This is an action for declaratory relief, by which plaintiff seeks a declaration of the rights and duties of the parties under three contracts. Defendant appeals from the judgment.

The first of the contracts in question is dated June 1, 1946, and is in the form of a letter addressed to defendant by plaintiff, reading as follows:

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“This is to advise that effective June 1,1946, you are hereby appointed exclusive selling agent of the OF Sarge line of gun cleaning equipment and brushes, and OF Sarge oil, in the following states: California (Excepting San Diego and Imperial Counties) Washington, Oregon, Nevada, Utah and Idaho.

“We will bill all merchandise shipped to your accounts to you at the current established distributors price, less a selling commission of 10%. Payment of all such accounts will be on terms of 2% 10 days, 30 days net.

“You will be required to purchase a minimum of 5000 rods per month, in such quantities and sizes as may be determined by the ability of the factory to obtain materials. Shipments will be made for your account from our warehouse in San Diego, with full freight allowed on 100# shipments.

“Please acknowledge your acceptance by signing and returning the enclosed copy.”

Defendant’s signature appears at the bottom of the letter under the words

‘ ‘

Accepted By. ’ ’

The second contract is dated June 18, 1946, and is similar in form to the first, the only variances being that the second agreement specified a different territory and the minimum quota was increased to 30,000 rods per month. By its terms this contract became effective June 1, 1946. It contains the statement that it “supersedes our letter of agreement of June 1,1946.”

The third is an oral agreement entered into on October 14, 1946, wherein the contract dated June 18 was mutually rescinded and the first contract dated June 1 was reinstated.

Defendant admits the execution of the several contracts and their validity at the time of execution. He also admits the first agreement was superseded by the second and that by the oral agreement the latter was mutually rescinded and the first contract reinstated. He contends, however, that the judgment is not in accordance with the findings and that the findings are not supported by the evidence.