Smythe v. Shaw ( 1915 )

Opinion bv

Trexlek, J.,

Shaw Brothers in writing ordered of the Sunshine Publishing Co. 100,000 copies of certain juvenile picture books. On the same day the Publishing Co., through J. H. Smythe gave Shaw Brothers a letter stating, “If within four or five months from the date of the first delivery, Shaw Brothers do not get rid of the 100,000 books, we guarantee to cancel said contract or any part thereof.” The Sunshine Publishing Co. through Smythe turned over the order to the American Lithographic Co. The plaintiff contends that the contractual relations between Shaw Brothers and Smythe thereby ceased and that thereafter the dealings were entirely between the American Lithographic Co. and Shaw Brothers. Whether this was so or not must be determined by the language contained in the following letter written by the American Lithographic Co. to Shaw Brothers: “Gentlemen: We beg to acknowledge receipt of your signed order to the Sunshine Publishing Co., Dr. J. Henry Smythe, President, Philadelphia, Pa., for books as per specifications herewith, which they instruct us to ship, bill and collect for their account. Yours very truly, American Lithographic Co. P. S. — Please let us know by return mail if this is in accordance with your understanding of the contract.” With this were the following specifications: “Quantity, 100,000 assorted books; price, $13.00 per M.; terms, 30 days net from date of bill; shipment, books to be shipped in four weeks’ time. There are no other conditions attached to this order, not expressed in this contract.”

If Shaw Brothers had no notice that the Sunshine Publishing Co. had assigned all its interest in the contract to the Lithographic Co. their liability must be determined under the written contract they had with the Sunshine Co. and under that contract it is admitted that they had the right of rescission. The whole point in the case is whether by any act of theirs or by the letter written by the Lithographic Co. to them, above quoted, their right of rescission terminated. We think the lower court was right in holding that there was no evidence on this question to go to the jury. The construction of the letter was for the court. The letter shows that the activities of the Lithographic Co. in the matter were to be on behalf of the Sunshine Publishing Co. The former was to ship, bill and collect for the latter’s account. The language shows no termination of Smythe’s interest in the contract. This being so, the right of rescission was not affected. It is true that the letter stated, “There are no other conditions attached to this order, not expressed in this contract,” but as long as the contract existed between the Sunshine Co. and the Shaws, the insertion of this clause did not affect that contract. The Sunshine Co. could not by making a contract with the Lithographic Co. to print the books, without mentioning about a rescission, cancel its written engagement with Sháw Brothers to allow such rescission unless the Shaws agreed thereto or by their acts signified their acquiescence.

There was some testimony in the case given by Smythe that Shaw Brothers knew of the absolute assignment of the contract to the Lithographic Co. but the court properly paid no attention to it for the reason that although Smythe testified as to the knowledge of Shaw Brothers, the testimony was merely a conclusion unsupported by the narration of any facts.

Whatever wrong was done to the use-plaintiff was in that Smythe assigned his contract and gave no notice to his assignee that he had entered into a written obligation to guarantee its rescission under certain conditions. His failure to do so caused the trouble and the consequent loss to the use-plaintiff should not be visited upon the defendant under the evidence submitted in the case.

The assignments of error are overruled and the judgment is affirmed.