Branower v. Independent Match Co.

The complaint alleges the making of a contract by which the defendant agreed to sell and deliver to the plaintiffs 12 car loads of matches between the 5th day of December, 1898, and the 5th day of September, 1899, the plaintiffs to have the right to demand the delivery of the whole 12 car loads within six months from the date of the contract, on an average of 2 cars per month; that the defendant had delivered 4 car loads of matches under the contract, but had failed to deliver the balance; that the plaintiffs have demanded of the defendant that it deliver the matches referred to in said contract, but that the defendant has refused to comply with the demand of the plaintiffs, and by reason of such failure the plaintiffs' have sustained damage in the sum of $3,560, the difference between the contract price and the market value of the said matches. The contract provided that:

“The Independent Match Company agrees to sell and Branower & Son agrees to take twelve car loads (1,600 gross each) matches to be delivered on the average of two cars per month. If a car is wanted oftener than each two weeks, Branower & Son to give the Match Company reasonable notice. If at the end of six months from date, Branower & Son shall not have taken twelve car loads, they shall have three months’ additional time in which to take them.”

Then follows the price to be paid for the matches. The answer of the defendant denied the allegations of the complaint, except the incorporation of the defendant, and the making of the contract therein referred to. It appeared from the plaintiffs’ evidence that after making the contract the defendant delivered four cars of matches—one in December, 1898, two in January, 1899, and one in March, 1899; that there then resulted a correspondence between the parties. A letter (which, from the record, appears to be dated March 5, 1898, but which is evidently a mistake for 1899) from the plaintiffs to the defendant was introduced, in which complaint was made as to the quality of matches shipped by the last car load, suggesting a change in the brand on the boxes and wrappers, and stating:

“The car which you have already made up for us will try and take next week-and will do all we can to sell it. Will let you know in a few days when to ship it.”

“We are sorry to learn of the bad matches but are ready to believe what you say in regard to them as we discovered the fault in our dipping man. * * =:• yve want to do everything possible to please you and help you increase your sales and we thank you for giving us the information and suggestions. We will act upon your advice and get up another brand for the Lucky. * * * The car load we have made up for you are wrapped in the heavier paper and the boxes are well filled. Let us know when we shall ship them.”

There is no answer to this letter in the record, but on April 5, 1899, the defendant wrote to the plaintiffs, asking if they were willing to cancel the contract, to which the plaintiffs replied on April 9, 1899, that they wanted to deal with the defendant, but that, in consequence of the bad quality of matches, the last car sold very slow; that, as soon as the plaintiffs could get rid of it, they would send an order for the new brand, “and, if same will be satisfactory, will certainly use it right .along.” On May 31, 1899, the defendant wrote to plaintiffs, complaining that they had not lived up to their contract, and asking what guaranty the defendant had that plaintiffs would take eight car loads within the next three months. On June X, 1899, the plaintiffs replied, saying:

“In reply to yours of the 31st would say that we never thought about going back on our contract with you, nor do we think so now. You will remember that, when once asked by you whether we are willing to cancel our agreement, we wrote you to the contrary; that we are now in the market for matches, and if the matches will be right will take them as per agreement—more yet. * * * You can ship one ear, 1,600 gross, at once—tomorrow or Saturday, and the following every two weeks as per agreement.”

This was followed by a telegram from the plaintiffs to the defendant on June 4, 1899, as follows:

“When can you ship, or you would not ship at all. Answer required.”

There is no answer to this letter or telegram in evidence, but in a letter dated June 7, 1899, the plaintiffs, after discussing the controversy, said:

“We are paying your price for the goods. We will sure take the quantity of matches you desire to sell. * * * What we have to say in conclusion is this, that we hope to hear from you this week that you will give us the eight cars of matches due to us upon the agreement and that we shall send you at once our order with exact date when to ship.”

No answer to this letter appears, but on June 22, 1899, the defendant telegraphed the plaintiffs:

“Yours of 21st at hand. We cannot give you an answer yet. We have had to shut down our factory for several days on account of the excessive heat.”

This seems to have been the end of 4he correspondence, and the defendant made no further effort to comply with the contract. It further appeared that what was called the “Trust” bought out the defendant company in June, 1899. One of the plaintiffs testified that they ordered matches between May xoth and May 29th, and wrote to the defendant asking for the goods repeatedly, but that no goods were shipped in response to these orders. Por the defense the manager of the defendant testified that he called upon the plain

At the end of the plaintiffs’ case, and at the end of the whole case, the defendant moved to dismiss the complaint. This motion was denied, and the court submitted to the jury the question as to whether there was a breach of contract by the defendant, calling attention to the letter of June 1st, and stating:

“Evidence has heen given on the part of the defendant tending to show that the plaintiffs had never ordered any matches after the shipment of March 17th. * * * If it is true that the plaintiffs never ordered any matches after the shipment of March 17th, then, of course, there has been no breach of this contract on the part of the defendant, and the plaintiffs, cannot recover. If you are satisfied, after consideration of all the evidence in this case, that the plaintiffs did order a shipment of the remaining eight cars within a period of nine months from the 5th day of December, 1898, and the defendant refused and failed to deliver those matches to the plaintiffs, then there was a breach of this contract, and the plaintiffs would he entitled to such damages as they have sustained.”

The defendant excepted to that part of the charge in which the court said, “The plaintiffs had nine months in which to perform under the contract,” and also to the further charge that, “if the jury-are satisfied that the plaintiffs ordered twelve ca.rs within nine months after the execution of the contract, they are entitled to recover.” After the jury retired, they asked the court the following question:.

“The question arises in the case of Branower v. Independent Match Co. as to whether the plaintiffs had the privilege of ordering goods as desired from the date that the contract went into effect until date of its termination, or was it incumbent upon the plaintiff's to order goods on the specific basis of two cars per month?”

In reply the court said:

“The plaintiffs were not bound to order two car loads of matches per month-They had the right to order the matches at any time during the continuance of the contract, to wit, nine months from the 5th day of December, 1899, giving the defendant, of course, a reasonable time in which to fill the order.”

" To which the defendant excepted.

There can be no doubt but that the finding of the jury that there was a breach of the contract by the defendant was justified. On-June 1, 1899, the plaintiffs distinctly ordered one car load of matches to be shipped within the two following days, and a car load within each of the two following weeks, and the defendant failed to comply with this demand. There was nothing in the prior correspondence that justified the defendant in treating the contract as broken or