Condit v. Bergmeier

63 F. 937, 1891 U.S. App. LEXIS 1692

• Court: U.S. Circuit Court for the District of Minnesota
• Decided: December 26, 1891
• Status: Published

Opinion

XELSOX, District Judge.

It is claimed that the complaint does not state facts sufficient to constitute a cause of action, and that the contract set forth therein is void, for want of consideration and lack of mutuality. The contract is designated “Canvassing Agreement and Bond.” The defendants P. W. B. & Co., in the agreement, recite that they accept the agency from plaintiffs, Condit & Co., for the sale by subscription of a certain book to be published by Scribner’s Sons, and the terms of the agency are stated therein. Tin' plaintiffs allege also that they formed the agency, and appointed the defendants P. W. B. & Go. their exclusive agents for the territory mentioned in the contract for procuring a sale of the hook by subscription under the terms thereof, and allege performance on their part. The defendants agreed to take not less than 4,200 copies, and make requisition and remit for the same at a fixed price before June 28, 1891; and the plaintiffs consented to allow them 42-¡- per cent. as. a commission. In case of a breach on the part of the defendants, liquidated damages were to be paid. The plaintiffs allege that the defendants failed to make requisition and remit under the terms of the contract, and that 3,048 copies of the work were not taken, and allege a breach for that and other reasons. The other defendants in the suit guarani ied the faithful performance of the contract by P. W. B. & Co., and the punctual payment of the sums that should become due thereon. We think, on examination of the contract, that the point made that it is a nudum pactum is not well taken, and that the complaint sufficiently sets forth a breach of the same.