The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1914-02-16

In Supreme Court, State of North
Dakota, September Term, 1918. w. D.
Glle, plaintiff respondent, VS.. In
ter-State Motor Car Company, a cor
poration, defendant and appellant.
/. Defendant, a distributor Of In
ter-State automobiles for the state Of
North Dakota. entered into a written
contract with plaintiff by which the
latter agreed to purchase and pay for
at least SO cars at specified dates dur-
ing the life of the contract, and to de-
post with defendant the sum Of $1,250,
being $500 on each car to be applied
by defendant On the purchase price Of
each when sold. In consideration
thereof defendant allotted to plaintiff
during the life Of the contract, nearly
one year, the exclusive right to solicit
purchasers of n to sell such cars in
ten designated counties of the state,
and obligated itself to furnish cars to
plaintiff when ordered at certain spec
life discounts from list prices. Plain
tiff promised to diligently and faith
fully advertise such cars in and 20
work such territory during the life OF
such contract and to do certain other
things tending to promote and to eff
fectuate the objects of the contract.
Plaintiff advanced to defendant the
deposit aforesaid and entered upon the
performance of the agreement. Dur
ing the entire life of the contract both
parties in good faith attempted to full
fill the same. Defendant was ready,
able and willing to perform on its
part, but plaintiff did not succeed in
making any sales during the entire
period, and as a consequence was un-
able to and did not take and pay for
such cars. Shortly after the te1mina-
ton Of such contract by lapse of the
period designated therein for it's ex-
istence. plaintiff brought this action
to recover such deposit money had and
received by defendant to his use,
claiming a right to the repayment
thereof upon the ground that the CON
sideration had wholly failed.
Held for reasons stated in the opin-
ion. that he cannot recover.
2. In order to maintain such action
it is incumbent on plaintiff to estab-
lish facts from which the law raises
an implied promise on defendants
part to repay such money, and such a
promise will never be implied except
where it appears that in equity and
good conscience defendant ought not
to be permitted to retain the same.
3. Whether the contract retained
and unenforcible while it remained
wholly ~executory, is not controlling.
The contract was not illegal or I'M
lawful. and the parties having acted
under it during the entire period of
it's existence it cannot, so far as ex-
cuted. be questioned. and it must to
such extent control and measure the
rights Of the respective parties.
4. The stipulation in the contract
authorizing the retention by defendant
of such deposit as liquidated damages
for plaintiffs breach thereof. held. not
in the nature of a penalty because
from the nature Of the case it would
be extremely difficult. if not impos-
sible. to fix the actual damages.
5. Plaintiff having preached the
contract while defendant performed
the same. as far as plaintiff permitted
it to do so. the former cannot recover
such deposit as for money had and re-
ceiyed.
6. Defendant, by his answer and
| proof. did not seek to recover dam