Cutler-Hammer Manufacturing Co. v. Phillip Gross Hardware & Supply Co. , 190 Wis. 346 ( 1926 )

■ The following opinion was filed April 6, 1926:

Vxnje, C. J.

The validity of the requirement contract sued upon is not questioned by the defendant. That such a contract for furnishing certain material or tools for an established business for a specified time is not so uncertain or indefinite as to lack mutuality seems well established by the decisions. See 11 L. R. A. n. s. 713 and note; 43 L. R. A. n. s. 730 and note; L. R. A. 1918 E, 296 and note; Shipman v. Straitsville C. M. Co. 158 U. S. 356, 15 Sup. Ct. 886; Cold Blast T. Co. v. Kansas B. & N. Co. 114 Fed. 77, 81; 35 Cyc. 208. But it is urged (1) that the court erred in permitting Hopkins, the purchasing agent of plaintiff corporation and a stockholder therein, to testify as to conversations had with Seifert, the salesman of defendant, since deceased; (2) in not submitting to the jury the question of plaintiff’s breach of its contract before the order of October 22, 1915, was placed, and (3) because the plaintiff ordered more than its requirements.

We need not consider the alleged error of receiving Hopkins’ testimony as to conversations with Seifert, because it was in no way essential to the questions submitted to the jury. There was little or no conflict in the evidence so far as the questions stibmitted to the jury were concerned, and Seifert’s testimony supports the answers made by -the jury to the questions. Neither is Hopkins’ testimony necessary to the determination of the other two alleged errors, so we eliminate Hopkins’ testimony entirely.

Unquestionably the plaintiff bought some of its drills during the year from the Union Twist Drill Company. But this fact was well known to the defendant and it made no objection thereto further than to request orders for itself. Seifert says:

“I understood that they expected to continue to get part of their requirements from the Union Twist Drill Company. Mr. Hopkins had told me that they were buying some drills for certain departments from the Union Twist Drill Company.”

The defendant, knowing that plaintiff did not purchase all its requirements from it, still continued to solicit orders under the contract. Its action in that respect concludes it from now claiming a breach because of such purchases. Jung B. Co. v. Konrad, 137 Wis. 107, 118 N. W. 548.

Defendant also now makes the claim that plaintiff ordered more than its requirements aiid that it was under no obligation to furnish the excess. The evidence does not sustain such claim. Seifert testified:

“I went to the Cutler-Hammer Manufacturing Company to solicit those orders that were given to me and brought them into our store to be filled. ... I had ample opportunity to see the stock in the stock room, but I did not take any advantage of it — I did not want to see. There was no disposition on the part of the Cutler-Hammer Company or Mr. Hopkins to conceal from me the amount of stock they had on hand.”

And in another place he says: “I had frequently suggested that they ought to take advantage of market conditions and lay in a good stock.” So even if it be a fact that plaintiff ordered more than its requirements, which it denies, such ordering was with the knowledge and consent of defendant, and it cannot now complain.

Our conclusion is that the only issuable facts at the close of the testimony were submitted to the jury under correct instructions.

By the Court. — Judgment affirmed.

A motion for a rehearing was denied, with $10 costs, on June 21, 1926.