Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-02-14
Supreme Court

In Supreme Court. state Of Nerth Da.
kota, September term, 1913.
W. D. Gle, Plaintiff and Respondent,
vs.. Interstate Motor Car Company, q
Defendant and Appellant.
4 Defendant, = distributor Of Inter-
State automobiles Tor the state OF North
Dak6tsas, entered into a written contract
with, 'plaihtif BY which the latter agreed
to purchase and pay for. at least so cars
at specified dates during tile life Of the
contract;;s'and to deposit with defendant
the sum of $ 1,25O, being $25. 90 OH each
carstOSsbe applied by defendant on the
purchase price of, each when sold.
In consideration thereof defendant al
.lotted to plaintiff during the life Of the
contract, nearly II year, the exclusive
right to solicit purchasers Of II to sell
cars in ten designated counties Of
the state, and obligated itself to furnish
care to plaintiff when ordered at certain
specified discounts from list prices.
Plaintiff promised to diligently and faith
fully advertise such cars in and to work
such territory during the life opf such
contract and to do, certain other things
tending to promote and to effectuate the
objects of the contract. Plaintiff advanc,
to defendant the deposit aforesaid
and entered upon the performance of, the
agreement. During tho entire, life Of the
contract both parties in good faith at
to fulfill the same. Defendant
was ready, able and willing to perform
on it's part, but plaintiff did not succeed
In making any sales during the entire
period, and as q consequence was unable
TO and did not take and pay for any
such cars. Shortly after the. termination
Of such contract by lapse Of, the period
designated therein for It's existence;
brought this action to recover
such deposit as for money had and re-
by defendant to his use, claiming
q right to the repayment thereof upon
the ground that the consideEation@had
failed. h3iH
Held, for reasons stated in the. opinion,
that he cannot recover II
2. In order to maintain such action It
is incumbent on plaintiff to establish
facts from which the law raises IAN !; in
piled promise on defendants part, I'd re
pay such money, and such a promisesawill
never, be implied except where it ap.
pears that IN equity and good conscience
defendant ought not to be permitted; to
the same. rs
Z. Whether the contract lacked lnu-
tuality and was therefore yoidable and
unenfOrcible while it remained wholly
.executory, is not controlling. The con.
tract was not illegal or .unlawfuli and the
having acted underIit during the
entire period Of it's existence ,itycannot,
SO far. as executed, be. guestione1l,t and 1t
must to such extent control and lacasure
the rights Of the respective parties
4. The stipulation in the contract au-
thorizing the retention by defendant Of
such deposit las llquidated damages for
plaintiffs breach thereof. held, not in
the nature Of q penalty because from thu
nature of ithescase it would be extreme,
difficult II not Impossible, iltos fiv the
actual damages. -
5. Plaintiff having preached the con:
tract while defendant performed the same
80 AoA oo :PA0AAASAiAE pSAA lASNSu ~ W w 81,
the former. cannot ecove suchse deposit
as for money had and received.
6. Defendant, by his answer and
proof, did not seek to, recover damages
against the plaintiff under the contract
but no merely pied and proved suchaac-
tual damages. as far as they were sus-
ceptable Of proof, as defensive matter
tending to show a want Of equity In plain
tiff's claim. :s :
(Syilabus by the Court.) :
Appeal from District Court, Nelson Go.
c. F. Templeton, j.. %s$ MI
From all order granting a!nek trial.
defendant appeals. Reversed.
Opinion of the Court by Fisk, y. Gass
and Burke, j.. J. dissenting u
Scott Rex, Grand Forks, N. D., for de-
PENDANT and Appellant.
Erich 4 Kelly, Lakota, N. D., for
Plaintiff. and Respondent. 4. g.