Schiffman v. Peerless Motor Car Co.

TAGGART, J.

Action to recover damages for breach of contract. Judgment for plaintiff and defendant appeals therefrom and from an order denying its motion for a new trial.

Plaintiff and defendant entered into an agreement on January 28, 1905, which recites that defendant is engaged in the manufacture of motor ears and parts which it desires to market to the best advantage, and that plaintiff proposes to engage in the sale of defendant’s product and agrees to purchase a certain number of its motor cars, to be resold within a certain ;fixed territory named (seven counties of Southern California). Plaintiff agreed not to sell or solicit orders for any cars outside of the territory named at any time prior to November 1, 1905, and defendant agreed not to solicit any orders or sell any cars within said territory, within that time, but to refer all inquiries from persons residing within that territory to the plaintiff. The plaintiff was to maintain proper quarters

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in a suitable location in Los Angeles for the storage of stock and the repair of cars and carry a reasonable quantity of supplies and spare parts for the repair and maintenance of motor cars manufactured by defendant, and the latter was to supply printed matter advertising its cars, mentioning the name of plaintiff as engaged in the sale of such cars within the territory named. Provisions were also made for local advertising by plaintiff and the expense of exhibiting at local fairs, etc. Plaintiff was to purchase three motor cars at a fixed price and model for delivery in February, 1905, being allowed twenty per cent discount from the list price, which was f. o. b. Cleveland, Ohio; and it was agreed that defendant should sell to plaintiff motor ears, parts and supplies, manufactured or handled by it, on the same terms during the existence of the contract. Deliveries to be deemed complete on board cars at Cleveland.

The court finds that the plaintiff supplied and maintained the quarters required, and did not refuse, neglect of fail to prosecute the sale of defendant’s motor ears, but complied in all respects with the terms of the contract, and was at all times during its existence ready, able and willing to perform it in all respects; but that defendant solicited orders and made sales of cars and parts thereof within the territory described during the term for which such contract was to continue; and that the plaintiff has suffered damages by reason of the particular breaches of contract, specifically found, in the sum of $4,145, less a setoff of $150, for which balance judgment is given.