Heimbuecher v. Goff, Horner & Co.

Mr. Presiding Justice Ball delivered the opinion of the court. The contract between Goff, Horner & Co. and the Steel Co. does not create the relation of principal and agent. In plain terms it is a contract by Goff, Horner & Co. to sell to the Steel Co. all the material the latter needed to keep its mills running to their full capacity, and by the Steel Co. to sell to the former the entire output of such mills. The terms of sale, the price of the materials furnished, the place of delivery of the product and the price thereof, are fully provided for and set out in the contract. In the 12th clause thereof the parties declare that the contract is mutual and bilateral, and based upon a good and valuable consideration, “its spirit being that Goff, Horner & Company shall use-its utmost endeavor to furnish the Steel Co. with enough material, on specifications, and purchase from the Steel Co. enough finished products to keep its mills operated to the full capacity,” etc. October 27, 1903, the secretary and treasurer of. Goff,, Horner & Co., upon the letter-head of that company, bearing the legend, “Representing the Muskingum Valley Steel Co.,” wrote appellant the following: “We, therefore, call you attention to the fact that our, firm here has nothing whatever to do with the Muskingum Valley Steel Co. other than as sales agents for their sheets, the two companies being entirely separate and distinct. * * We have nothing more to do with your claim against the Muskingum Valley Steel Company than we would have regarding a claim against the Hnited States Steel Corporation.” This letter-appellant claims construes the contract in question as one of agency. We do not so understand it. There is no evidence in the record that appellant ever acted upon these words, or changed his position because they were written. The claim of appellant accrued in the fall of 1901, and this letter was not penned until after this suit had been commenced. In the absence of evidence that a third party has been misled by mere words, the law is that such party cannot set up the words as a conclusive construction of a contract. Evidence of the opinion of the parties to a contract as to its meaning, not carried into effect by any act, does not show such a contemporaneous construction as must govern in its interpretation. Shaw v. Andrews, 62 Fed., 460. Agents of the parties cannot by words give a construction to a contract not warranted by its terms. Mor is the fact that the goods were shipped from the plant of the Steel Co., in its name as consignor, controlling. It is undisputed that these goods were purchased by the Wheeling Co. from Goff, Horner & Co., and that the latter company directed the Steel Co. to fill these orders under the contract existing between. fhñ-m. The Steel Co. so did, and received the pay for the same before this suit was brought. It follows that the Wheeling Co. became indebted to Goff, Horner & Co. for ¡these goods, and that the relation of principal and agent did not exist between Goff, Horner & Co. and the Steel Co. in this transaction. Such being the legal relations of the parties, the Steel Co. could not recover from the Wheeling Co. the proceeds in controversy, and it follows that appellant had no right to run an attachment in the name of the Steel Co. for his use and apply the proceeds in the hands of the garnishee in satisfaction of his debt. We do not regard this contract as one in restraint of trade and, therefore, illegal and void. Nor do we think it is forbidden by the anti-trust law of this state, or by the Sherman Act. There is neither allegation nor evidence here that this contract tended to produce a monopoly, or was in restraint of trade, or enabled the parties thereto, or either of them, to monopolize the market, or that it had anything to do with «commerce. This contract is a plain every-day contract, by which one corporation binds itself to buy all its raw materials from and to sell all its manufactured product to another corporation. Such a contract, taken by itself, is harmless. He who asserts that it is illegal and void must by proper averments and competent evidence show such invalidity. By (entering into this contract the Steel Co. was able to get all ¡the raw material necessary for the prosecution of its business, and was also able to sell at once, without going into the market to search out a possible buyer, the entire output «of its factory, at a satisfactory price, thus wiping out many -of the difficulties which beset the producer. Hnder this contract the raw materials became the property of the Steel Co., and it became the debtor of Goff, Horner & Co. for their value, and the latter company became the owner of the manufactured product of the Steel Co. and its debtor for its value. It is a purchase in bulk of the raw materials on the one hand •and the purchase in like manner of the finished product, on the other hand. U. S. v. Nelson, 52 Fed. 646; Carter v. Peurrung, 86 Fed., 439; U. S. v. Knight, 156 U. S. 1; Hopkins v. U. S., 171 U. S., 578; Anderson v. U. S., 171 U. S., 604; Field v. Barber Asphalt Co., 194 U. S., 623. There is no evidence in the record that this contract was made to hinder and delay the creditors of either party to it, and hence it is legal and binding not only as to the parties executing it, but also as to third parties. The only order which was appealed from, as shown by the condition of the appeal bond, is the judgment for, costs in favor of Goff, Horner & Co. and the Wheeling Corrugating Co. on “its certain interplea and answer as garnishee severally,” from which appellant prayed for and obtained the present appeal. The Steel Co. is not made an appellee. That company is the only party interested in sustaining the order of the trial court in dismissing the attachment suit. Hence we think that this point is not properly before us. But if it were, it was not reversible error to dismiss that action. The court below found in favor of the interplea and sustained the answer of the garnishee,, thus deciding that the money in dispute belonged to Goff, Horner & Co., and that the Steel Co. had no property therein. The evidence clearly shows that the Steel Co. was never indebted to appellant. Therefore, the court discharged the only garnishee, and as the Steel Co. had not been served and had not been brought in or appeared in the attachment suit, and none of its property had been seized under the writ, the court properly, we think, dismissed the attachment suit. The controlling questions in the case being thus disposed of, and as, under the evidence, the appellant has no right of recovery, it is unnecessary for us to discuss his further contentions. The judgment of the Superior Court is affirmed. Affirmed.