Thompson v. Hamilton Motor Co.

SHAW, J.

The defendant appeals from the judgment. The action is to recover damages for breach of an agreement between the parties executed on October 1, 1910. It contains many provisions that are immaterial to the controversy, and which need not be stated here.

In effect the agreement provided that the plaintiff thereby granted to the defendant the exclusive right to sell Jackson

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and Fuller automobiles in certain territory in Los Angeles County, California, during the period from October 1, 1910, to August 15, 1911, in consideration whereof the defendant-agreed that it would on or before August 15, 1911, purchase and order from the plaintiff at .least twenty-five of said automobiles, at factory prices, to be delivered to it in the railroad cars at Jackson, Michigan, as ordered. On all cars taken from stock on which the factory price was one thousand four hundred dollars or less, the defendant was to be allowed a discount of fifteen per cent from the factory price. Other discounts were to be allowed on higher priced cars, but as none of these cars is involved, these discounts are immaterial. On all orders for cars in less than carload lots, he was to pay one hundred dollars of the price of each car at the time of sending in the order. The balance of the price was to be paid on delivery on board cars at Jackson, Michigan, for shipment to California.

The complaint sets out the agreement in full and alleges that the defendant ordered, purchased, and paid for only four of the twenty-five cars he agreed to buy of the plaintiff, that he failed to order, buy, or pay for the remainder, that if defendant had purchased the remaining twenty-one cars as it agreed to do, the plaintiff’s profit on each car would have been one hundred dollars, that by reason of the defendant’s failure to purchase and pay for said cars plaintiff has suffered damage in the sum of two thousand one hundred dollars, for which sum plaintiff asks judgment.

The general demurrer to the complaint was properly overruled. As a basis for the damages claimed it alleges that plaintiff’s profit on each car which defendant agreed to buy would have been at least one hundred dollars. This is equivalent to a statement that the price which defendant agreed to pay for each car was at least one hundred dollars more than the value of such ear to plaintiff, in other words, that plaintiff could have obtained the cars for one hundred dollars less each than the contract price to defendant. This would be the detriment proximately caused to the plaintiff by the defendant’s failure to buy as it agreed to do, and sufficiently states the damage if the case falls within the rule as to the measure of damages, as fixed by section 3300 of the Civil Code. If it comes under the rule presented by section 3311, fixing the measure of damages as “the excess, if any, of the amount due from the buyer, under the contract, over the value to the