Bessing v. Prince

CONREY, P. J.

On the twenty-sixth day of July, 1918, a contract in writing was entered into between Bessing, as party of the first part, and Prince, as party' of the second part, which contained the following terms: It was stated therein that Prince appointed Bessing as his “direct and exclusive representative and agent” for certain western states for a period of one year from the date of the contract. In consideration of Bessing’s selling the Prince vibrator for printing-presses, and all improvements thereon, during the period of twelve months from that date “according to price agreed upon by both parties hereinafter mentioned the gross amount of $10,000” for the described territory, the contract was to renew itself automatically. Prince agreed to furnish to Bessing “each of the three sizes of the Prince vibrator for printing presses at ten dollars per vibrator complete for service and shipment in Los Angeles, California.” It was further agreed that “should party of the second part fail to produce the vibrators in sufficient quantity to fill his orders, then the party of the first part shall have the right to manufacture in sufficient quantity to fill the contract made, and paying the party of the second part five dollars ($5) as royalty for each vibrator so made and sold.” Bessing brought this action to recover damages for breach of the contract.

The second amended complaint alleged, “that at no time has the defendant furnished to the plaintiff any vibrator or vibrators complete for service and shipment in Los Angeles, though plaintiff has continuously since the execution of said

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contract demanded them, but, on the other hand, has furnished to this plaintiff about fifty vibrators which were not complete for service or shipment and which were not merchantable or usable or salable, and which would not perform the purpose for which they' were made and for which they were to be sold by the plaintiff, in that the same were defectively manufactured and would not perform the work required of them on a printing-press, by reason of all of which the vibrators sold by the plaintiff and which were furnished to the plaintiff by the defendant under said contract were wholly unfit for the purpose for which they-were sold; and that defendant has at all times since the execution of said contract failed and refused after demand to furnish to plaintiff vibrators complete for service and shipment; that in endeavoring to sell said vibrators under the agreement hereinbefore mentioned, the plaintiff was put to the actual and reasonable expense of $316.70, the same being the actual expenses reasonably and necessarily incurred by plaintiff in an effort to sell said vibrators; and that the profit on the fifty vibrators furnished to the plaintiff by the defendant, and which could have been sold, and plaintiff’s profit thereon realized, if the said vibrators had been usable, merchantable, or salable, would have been at least the sum of $500; that by reason of defendant’s failure to furnish plaintiff vibrators complete for service and shipment as aforesaid, the plaintiff was unable to sell any of said vibrators, and unable to realize any profit on the same, or on any of the said fifty vibrators so furnished, and was deprived of the profits of future sales; and that in truth and in fact if said vibrators had been complete for service and shipment as required by said contract, the plaintiff ‘would have realized at least $2,500 on sales’; that the defendant at all times knew that the plaintiff was incurring said expense which was reasonable and necessary in an honest effort to sell said vibrators; and further, that the profits to the plaintiff if the vibrators had been complete for service and delivery would have been at least the sum of $2,500, and that solely for said reasons plaintiff was unable to make and complete sales thereof to the damage of the plaintiff in the sum of $2,500, all of which was known to the defendant; and that it was well known to the defendant at the time of the execution of said contract, and at all times since, that