Daniels v. Knight Carpet Co.

Mr. Justice Hayt delivered the opinion of the court. The only question presented for our determination in this case grows out of the proviso contained in the contract, to the effect that appellants shall be discharged from liability for the monthly payments immediately upon the happening of certain conditions in reference to competition. The contract may be briefly summarized as follows: First. It provides for the sale of the entire stock in trade of the Knight Carpet Company to appellants, at cost, and the sale of the store fixtures for the sum- of $700. Second. For the payment of $5,000 to appellees for their good-will in trade, and their agreement not to engage in the carpet or curtain-business within Arapahoe county before the 1st day of January, 1886. Third. An agreement to pay appellees the sum of $116.66 per month during the years 1886 and 1887, subject to the following conditions: (a) Appellees not to engage in the business during the time; (5) if no person other than appellants, Hart Bros., and one other, whose capital should not exceed $5,000, shall engage in this business during the time, and if appellants should fail to make the monthly payments because of others engaging in the business, then appellees might, at their option, resume the curtain and carpet business; (c) if any party or parties should engage in said business during said years in such a way as to relieve appellants from making the monthly pay [62] ments, and thereafter discontinue such business, then the monthly payments were to be renewed, if appellees had not in the meantime engaged in the carpet and curtain business. The agreement in reference to the payment of the $416.66 per month is finally stated in the contract as follows : “ The intention of that part of this contract which relates to the years A. D. 1886 and 1887 being that said second parties shall pay to said first parties the said sum of $416.66 for each month in said years A. D. 1886 and 1887 as they (the said second parties) shall encounter in said business no greater competition than said Hart Bros., and one other party, whose stock of said goods shall not exceed $5,000 in value.” By the express terms of the written agreement appellants’ liability for the payment of the $416.66 per month was made to depend upon the condition that they should encounter no greater competition in the carpet and curtain business than said Hart Bros., and one other party, whose stock of said goods should not be more than $5,000 in value, while the testimony shows that besides the stock carried by Hart Bros, there were other dealers engaged in the carpet and curtain business during these months, whose combined stock amounted to about $12,000. We are not embarrassed in this case by any conflict in the evidence. The undisputed facts are that at all times during the months of January and February, 1886, the following persons, in addition to Daniels & Fisher, Cordes & Fpldhauser, and Hart Bros., were engaged in the carpet and curtain business in the city of Denver, to wit: David McCall, with a stock valued at over $3,500; "William Gadsby, with a stock of about $500; A. J. Arfsten, with a stock valued at between $3,000 and $4,000; G. W. Gildersleeve, who carried a stock of $500 or $600; Pat Casey, with a stock of about $3,000. In addition to these there were several other dealers, carrying stocks of curtains and carpets, ranging in value from $200 to $500 each. [63] The learned judge who tried the case below was of the opinion that these parties, although dealing in new carpets and curtains, and purchasing from first hands in large quantities, should not be considered in competition with appellants for the reason that they were what is commonly termed “ second-hand dealers.” It was the undoubted right of the parties in making the contract to have made an exception for such dealers in the written instrument. They did not do so, however, and for the court to undertake to vary the terms of the written instrument so as to exclude such dealers would be equivalent to writing into the contract something not put there by the parties. The law will neither make, nor permit to be made, for parties a different conti-act from that which they have made for themselves, and a court cannot, by construction, defeat the express stipulation of the parties. These principles are well settled. 2 Pars. Oont. secs. 497, 560. This contract is clear and unambiguous. The moment appellants met with greater competition in the city of Denver than that encountered from Hart Bros, and one other party, whose stock of carpets and curtains it was agreed should not exceed in value the sum of $5,000, their liability to pay the sum of $416.66 monthly, or any other amount, ceased. It makes no difference by whom or in what manner the stores were opened, or under what name the. business should be conducted, whenever they were compelled to encounter greater competition than that specified, they were released from liability by the express terms of the written instrument. It is unnecessary to consider the other assignments of error. The judgment must be reversed and the cause remanded. Reversed.