Alexander v. Panama MacAroni Co.

[439]

KNIGHT, J., pro tem.

This action was brought to recover damages for - breach of contract. Judgment was for the defendant and plaintiff appeals.

[1]

The basis of the appellant’s action is a letter dated April 9, 1915, addressed to Alexander-Callen & Co., and signed by respondent, which appellant contends constituted a contract whereby the firm of Alexander-Callen & Co., a copartnership, of which appellant was a member, was made the exclusive selling agent for respondent’s goods for a period of ten years. Said letter reads as follows:

“We hereby agree to make you our exclusive selling agents for ten years beginning today and expiring April 9th, 1925. We will pay you a commission of fifteen cents per ease (case contains 24 packages), when goods are introduced and the price of flour is normal. Said commission to be paid at end of each calendar month. We reserve the right to refuse business where customers’ ratings do not justify credit. In consideration of the above commissions, you are to show an increase in our sales each consecutive year, unless impossible, such as panic, etc., causing business to decrease generally. We reserve the right to make the selling prices. The idea of this agreement is to work together in good faith, in building up a good business for the factory. We are to be consulted on all matters such as the territories you are to sell in, and how the goods are to be sold.”

Respondent denies that said letter constituted the contract between the parties, and claims that it was intended to be, and in fact was, a mere offer which was never accepted by appellant and was by the respondent, on December 2, 1915, withdrawn, and that the only contract ever existing between the parties was an oral one whereby an agency was continued from month to month, and that on February 9, 1916, said oral agreement was terminated. Respondent also relies upon two other defenses, the first of which is that appellant at the time said letter was written, was a member of a copartnership which was, subsequent to the date of the letter and prior to the alleged breach, dissolved by the retirement of one of the members of the firm, which fact respondent contends terminated any contract of agency which may then have existed. The other defense is that the creation of the agency as contemplated by said letter was