Keller v. Hiers

SHINN, P. J. On November 13, 1947, plaintiff gave defendants and defendants accepted a written order for the purchase at $4.25 each of 1,000 soda fountain pumps to be manufactured by defendants as per sample furnished by plaintiff. The agreement read in part:

"Also, find enclosed a cashier’s check for $2125.00 to be applied on our account, balance to be paid after completion and delivery of 1000 pumps. If said pumps are not completed and delivered within a period 90 days from this date, the sum of $2125.00 is to be returned to the A. J. Keller Sales Co. together with any attorney fees, court costs, etc., which may be incurred in the collection of said monies.

"The acceptance and cashing of the enclosed cashier’s check be deemed as full and complete acceptance of this purchase order together with all its stipulations and shall make the same binding just the same as if it were a signed contract.”

After plaintiff had granted several extensions of time and defendants had failed to fulfill their agreement it was terminated by plaintiff for nonperformance. He then brought this action seeking: (1) Return of $2,125 plus attorney’s fees and costs of collection; (2) $10,000 damages for breach of the agreement; (3) rescission and the return of his deposit, and (4) an injunction against the use of his information and ideas for the manufacture of such pumps. Defendants answered and by a counterclaim and an action separately filed sought recovery for work, labor and services performed for [427]plaintiff of the reasonable value of $19,236.70. After an extended trial the court found that defendants had breached the contract and plaintiff was entitled to the return of $2,125 plus $500 attorney’s fees and $96 as costs of collection, or a total of $2,721. Defendants were awarded $2,939.76 for work done for plaintiff and judgment was entered in their favor for the net sum of $218.76. Plaintiff appeals.

As the trial court construed the contract return of $2,125 was agreed upon as the exclusive measure of any damages which plaintiff might suffer as a result of defendants’ breach. This construction is assailed by plaintiff. He says he was entitled not only to the return of $2,125 but also to damages for the loss of his bargain. The trial court was of the opinion that the parties had anticipated failure of the manufacturing effort and by their agreement had furnished the answer to the principal issue in the case. We do not disagree with this conclusion.