Ludington v. North

Opinion, Me. Justice Williams : This action is brought by the indorsee of a promissory note against the makers. The note was payable to Conover Bros. Co. at four months, and bore the indorsement of the payees and of M. Ludington. The defendants made an affidavit of defence, in which they denied that the note had been negotiated; alleged that the plaintiff was suing for the benefit of the payees, and had so said in writing to the defendants. This put them in position to set up as against the plaintiff any defence that thejr could make if the action had been in the name of Conover Bros. Co., the payees, and they accordingly proceeded to state the facts on which they relied as a defence. These were as follows: That Conover Bros. Co. were manufacturers of a particular style of piano; that they had appointed the defendants their sole agents for the sale of these pianos in the city of Philadelphia, for a period which did not expire until 1892; that, because of this exclusive right of sale and at the request of Conover Bros. Co., they purchased a large bill of pianos from said Con-over Bros. Co. in 1890, and gave this note for part of the price ; that after this purchase the payees, in violation of their contract with the defendants, took away from them the agency for the sale of said pianos in the city of Philadelphia, without any just cause, and entered into a contract with another person, giving the sole agency or right of sale of said pianos to such person, and leaving their unsold stock on their hands. By reason of the violation of the contract giving them the exclusive sale of these pianos, the defendants say that they are injured in their business, and have sustained definite pecuniary loss; they have expended money in advertising the pianos the agency for [188] which has been taken from them, which is now a loss, although they have neglected to state the amount. They also allege that by reason of the revocation of their agency, and the establishment of another one in this city, they have been unable, after diligent efforts, to sell their stock, and have twelve of the pianos unsold on their hands, the cost of which was $2,000, and at this sum they estimate their damages. This may be, and probably is, an erroneous measure of damages ; but it rests on an alleged breach of contract, which, if committed without reason, as is alleged, might well support a claim for the actual loss resulting from it. The question to be determined on this motion is, not whether the defendants have adopted a correct measure of damages, but whether they have stated facts from which a right to damages results. For the purposes of this motion, we are to consider the plaintiff as standing in the shoes of Conover Bros. Co., as the affidavit places him there. We are then to assume that the note sued on was given for part of the price of a bill of pianos, bought while and because the defendants were the exclusive agents for the sale of that style and make of pianos in the city of Philadelphia, so that they could be bought only from them; that, soon after their purchase of this bill and the giving of this note, their agency was wrongfully taken from them and given to another; that by this means their exclusive right to the market because of which they made the purchase, was destroyed, and their vendors entered into competition with them; that their unsold stock was thus rendered of little or no value to them by the wrongful acts of their vendors. These facts show a cause of action, and they are therefore good as matter of defence to an action by the vendors on a note for part of the price of the stock thus depreciated by their breach of their agreement. The judgment for want of a sufficient affidavit of defence is set aside, and the record remitted, with leave to the plaintiff to proceed, without prejudice to his right, to trial by jury and a writ of error after final judgment.