Owensboro Wagon Co. v. Hall

ANDERSON, J. The contract in this case makes the defendant, the agent of the plaintiff for the sale of its wagons, with the right to treat him as purchaser of all the unsold wagons, should it so elect, after the expiration of twelve months, or iu the event the defendant went out of the mercantile business,, but did not specify any time for the termination of the agency. The defendant had the right to terminate the agency at any time before twelve months, or before going out of business, without giving the plaintiff the right to treat him as a purchaser, hut, as the plea does not aver that the defendant terminated the agency before the plaintiff had the right to treat him as a-purchaser, the demurrer to the 4th plea should have been sustained. The contract provides that the plaintiff can treat the defendant as a purchaser of the unsold stock of wagons, by making demand, upon the expiration of twelve months, or could do so. in ease he abandoned the mercantile business. But the mere fact that he sold out his mercantile business, and notified the plaintiff of the fact, and that it then failed to elect to treat him as a pur [180] chaser, did not preclude the plaintiff from treating him as such, in the absence of any facts showing a waiver on its part to so treat him. The 5th plea'was bad and the demurrer thereto ishould have been sustained. Although the plaintiff had the right, under the terms of the contract, to treat the defendant as a purchaser as to the unsold stock of wagons, when he quit the mercantile business, i.f the defendant, after he sold out his mercantile business, notified the plaintiff of the fact, and it then instructed him to sell the wagons and settle monthly, or after he had collected for same, and he did do so, or agreed to do so, that would operate as a waiver on the part of the plaintiff to compel the defendant to purchase the goods or to subsequently treat him as a purchaser. And, while section 10 of the contract provides that a failure of the plaintiff to' exercise the option*at any time, shall in no< wise impair the validity of the contract or the right to enforce the same, it does not enable it to’ waive the right to treat him as a purchaser by continuing to deal with him as such agent, after having notice that he had quit the mercantile business, and after so waiving the right to elect to then treat him .as a purchaser. And the demurrer to the 7th plea was properly overruled. The general charge was given for the defendant and the trial court erred in giving the same. The evidence of the defendant did not establish the material averment, of the. 7th plea, to-wit; “That the plaintiff understanding all the facts treated the defendant as its agent in handling the goods by running on under said contract of agency, in carrying on the business of said agency.” The defendant testified, that “After plaintiff insisted on his keeping the wagons and selling and then paying for them, that he declined to do so,” and which shows that the business was not continued under the agency as averred in the 7th plea. Reversed and remanded. McClellan, O. J., Tyson and Simpson, J.J., concurring.