Jackson v. Beers & Davies

Baldwin, J. delivered the opinion of the Court—Field, C. J. concurring.

This suit was brought by the plaintiff against the defendants on a contract. This contract was made by and between defendants, Beers & Davies, and a firm of Gilbert & Stringer, also defendants. By this contract, Beers & Davies agreed to furnish Gilbert & Stringer twelve hundred and fifty cases (twenty-five thousand gallons) of turpentine, which Gilbert & Stringer agreed to distill into camphene for fifteen cents per gallon, and to distill it at the rate of two hundred gallons per day, or less, for the first fifteen days, after the 1st of December, 1856; and at the rate oí four hundred gallons, or less, per day, after the expiration of said fifteen days; and that it should be at the option of Beers & Davies to furnish to Gilbert & Stringer, for distillation as aforesaid, such quantity of turpentine each day as Beers & Davies might desire and determine to furnish, and have a right to require the distilling of any more than two hundred gallons per day, for the first fifteen days as aforesaid, and four hundred gallons per day thereafter.

It was further agreed, that the distillery of Gilbert & Stringer, at which this distilling was to be done, should not be used for any other purpose than that specified in and by said contract, until the whole amount (twenty-five thousand gallons) of Beers & Davies’ wras distilled, except the distillation of two thousand gallons, then owned by Gilbert & Stringer, and also one thousand gallons to be furnished by one Morrison. It was agreed, that after these last two thousand gallons were distilled and sold—which was to be within fifteen days from the said 1st of December—that then all sales made by Gilbert & Stringer of camphene, should only be that belonging to Beers & Davies; and that there should be a charge of fifteen cents upon each gallon of said turpentine so to be distilled, and also the expense of a horse and wagon, and a man to drive the same, which last charge to be equally borne by Beers & Davies and Gilbert & Stringer. Beers & Davies were to furnish the turpentine at the market [192]price for turpentine, and the difference or profits—after deducting such expenses and charges as aforesaid charged—should be equally borne by the two firms. “ This agreement to be null and void should said parties of the first part sell the balance of the turpentine remaining undistilled at any time, on their payment to said parties of the second part, of fifteen cents per gallon on the amount so remaining undistilled.