Berkley v. Maxwell Motor Sales Corp. ( 1918 )

Opinion by

Porter, J.,

The court below held the affidavit of defense to be insufficient and entered judgment in favor of the plaintiffs, from which judgment the defendant appeals. The opinion of Judge Ruppel of the court below so fully vindicates the conclusion at which he arrived that little can with profit be added. The contract between the parties and the order for automobiles given by the plaintiffs to the defendant, which by its very terms became a part of the general contract, clearly indicate that it was the intention of the parties that there was to' be a settlement of the business done under the contract at the end of each season and that the plaintiffs were to be paid a bonus on the cars that they sold within sixty days after the end of the season. The contract was dated July 7, 1916, and required that the plaintiffs upon the execution of the contract should give a written order, upon a form provided by the defendant company, for, “his requirements between the date of the agreement and June 30,1917, and annually thereafter at least thirty days before the thirtieth day of June in each year during the continuance of this agreement, the distributor shall give the company a similar order, covering the distributor’s requirements for the ensuing twelve months, specifying a number of cars satisfactory to the company......all of which orders are and shall be part thereof.” The order which the plaintiffs gave, at the execution of the contract and upon the blank provided by the defendant company, specified the number of cars which the plaintiffs would require for each month down to the 30th of June, 1917, and provided that the defendant company should pay a bonus of ten dollars “per car for each car taken under this agreement......said bonus to be paid within sixty days after June 30, 1917, after deducting any amount due from us.” This was equivalent to saying that the bonus should be paid within sixty days after the close of “the season.” The defendant, on September 27, 1916, cancelled the contract, which it had a right to do under the covenants thereof, and thereupon it became the duty of the plaintiffs to return to the. defendant any cars which they then had in their hands. The contract primarily contemplated doing business for the entire season, the end of which it fixed for tlie 30th day of June in each year, and the order provided that the bonus should be paid within sixty days after the same date. We are of opinion that when the defendant company exercised its right to terminate the contract on the 27th day of September, 1916, the effect was to make that date the end of “the season,” and the bonus upon the cars which had been sold became payable within sixty days after that date. This action was, therefore, not prematurely brought.

The judgment is affirmed.