Scott v. Cline Electric Manufacturing Co.

CRAIG (ELLIOT), J.,

pro tem.

This is an appeal by plaintiff from a judgment in favor of defendant rendered after the sustaining of an objection to the introduction of any evidence, at the commencement of the trial, on the ground that the second amended complaint did not state facts sufficient to constitute a cause of action and after the sustaining of an objection to an offer of proof on the ground “that the offer does not prove or tend to prove the case in the pleadings set forth.”

For the purposes of said rulings the trial court had to consider as true all of the allegations of said second amended complaint and all of the facts stated in the offer of proof. We therefore state the facts as therein set forth, although the truth of a part thereof was in fact denied by the answer.

The second amended complaint alleges (in substance) : That on or about May 11, 1922, plaintiff, an electrical contractor and merchant, in Los Angeles, California, entered into an agreement with defendant, a manufacturer, the portions of said agreement which are herein material, being: “if you are willing to push the sale of our motors in connection with your machines, save where the customer specifies some other make, your acceptance of one copy of this

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letter will constitute a motor manufacturer’s agreement and will entitle you to contract discounts on all motors purchased by you from us.

“This agreement to remain in force for one year from date of acceptance and to continue in force from year to year unless cancelled by one of the parties hereto thirty days prior to the expiration of any yearly period, it being understood and agreed that the motor prices and discounts will be subject to variations that may be made by the Westinghouse Company and published in their regular price sheets. We shall be glad to fill your orders and give them the attention that will show our interest in your business.”

This was signed by defendant. Plaintiff signed thereon: “This proposal is hereby accepted: H. W. Scott.”

Said complaint further alleges that plaintiff complied with said agreement and performed all of the covenants and conditions as agreed by him to be performed, and that he did push the sale of defendant’s motors in connection with his machines, and that said agreement was fully kept and performed by both parties from May 11, 1922, to June 25, 1925, on which latter date and continuously thereafter defendant refused to further perform under said contract. Plaintiff prayed for $20,000 as damages for said breach of contract.