{ "id": 2760198, "name": "Vincent Bendix, Appellant, v. Staver Carriage Company, Appellee", "name_abbreviation": "Bendix v. Staver Carriage Co.", "decision_date": "1912-11-29", "docket_number": "Gen. No. 17,460", "first_page": "589", "last_page": "599", "citations": [ { "type": "official", "cite": "174 Ill. App. 589" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "211 Ill. 229", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3307252 ], "opinion_index": 0, "case_paths": [ "/ill/211/0229-01" ] }, { "cite": "160 Ill. 85", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3127262 ], "opinion_index": 0, "case_paths": [ "/ill/160/0085-01" ] }, { "cite": "178 Ill. 85", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3146922 ], "opinion_index": 0, "case_paths": [ "/ill/178/0085-01" ] }, { "cite": "214 Ill. 589", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3315957 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/214/0589-01" ] }, { "cite": "179 Ill. 593", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5545663 ], "opinion_index": 0, "case_paths": [ "/ill/179/0593-01" ] }, { "cite": "130 Ill. 28", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 12121297 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/130/0028-01" ] }, { "cite": "153 Ill. 427", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3029687 ], "opinion_index": 0, "case_paths": [ "/ill/153/0427-01" ] }, { "cite": "48 Neb. 397", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 8547785 ], "opinion_index": 0, "case_paths": [ "/neb/48/0397-01" ] }, { "cite": "48 Ore. 359", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2238150 ], "opinion_index": 0, "case_paths": [ "/or/48/0359-01" ] }, { "cite": "105 Iowa 537", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8648104 ], "opinion_index": 0, "case_paths": [ "/iowa/105/0537-01" ] } ], "analysis": { "cardinality": 793, "char_count": 22054, "ocr_confidence": 0.521, "pagerank": { "raw": 3.064406320422146e-07, "percentile": 0.856845901054463 }, "sha256": "08d4b6be31b07ca2f53528aefebef8b05e0bd8fb17f06c945629e0f126433148", "simhash": "1:62e6ccb70c0898c7", "word_count": 3869 }, "last_updated": "2023-07-14T18:56:54.106977+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Vincent Bendix, Appellant, v. Staver Carriage Company, Appellee." ], "opinions": [ { "text": "Mr. Justice Fitch\ndelivered the opinion of the court.\nAfter the appellant (plaintiff below) had filed a second amended statement of claim in the Municipal Court, that court, on motion of defendant, struck out such statement and dismissed the suit, on the ground \u201cthat the plaintiff\u2019s said claim is clearly unfounded in law. \u2019 \u2019' The question presented here is whether said amended statement of claim states a cause of action.\nSaid statement recites that the defendant is - an Illinois corporation, having its principal place of business in Chicago; that on April 15, 1909, the plaintiff and defendant entered into a contract in writing, a copy of which is attached to the statement of claim. Said contract is entitled \u201cAgency Agreement\u201d and provides that in consideration of one dollar and \u201cthe mutual covenants and agreements herein contained the parties hereto do mutually covenant and agree\u201d as follows, in substance:\nThe Carriage Company on its part \u201cgrants and extends\u201d to Bendix \u201cthe exclusive right to sell their Staver motor cars and chasses\u201d in Chicago and all territory within fifty miles thereof \u201cupon the following terms, namely: $50 cash deposit per car with each order, the balance being payable at the time delivery is made,\u201d less a discount of thirty per cent, from the regular list or catalogue price; said agreement to continue in force from the date thereof until September 30, 1910, unless sooner terminated by the company for a violation of any of its provisions.\nBendix, on his part, \u201cagrees to pay for such motor cars upon the terms aforesaid;\u201d to maintain a sales office in Chicago, and to keep in stock one car \u201cas a sample to be used for exhibition or demonstration purposes;\u201d to give the said Staver cars \u201cat least equal representation\u201d with any automobile handled by him; to \u201cfaithfully represent the same, and to use all reasonable effort to promote and increase their sale,\u201d and not to sell any of such cars outside of the specified territory without the company\u2019s consent; also \u201cto take delivery of or make deposit on a total of at least ten Staver motor cars on or before the 31st day of December, 1909, otherwise this agreement shall immediately thereafter become null and void. \u2019 \u2019\nThe agreement further provides that on all orders up to and including June 15,1909, Bendix is to give the company at least forty-five days\u2019 notice prior to the date any car is \u201cwanted for delivery,\u201d and after that date \u2018 \u2018 orders are to be filled with reasonable promptness ; \u2019 \u2019 that between June 15, 1909, and December 31, 1909, Bendix is to have \u201cthe first refusal of at least five motor cars each month,\u201d and between January 1, 1910, and September 30, 1910, he is to have \u201cthe first refusal of at least ten motor cars each month;.\u201d also that the company, on the request of Bendix, \u201cwill collect from any customer of the latter\u201d whatever amount or balance may be due him and at once remit to him the difference between the amount due to the company on the car sold and the amount collected from the customer therefor; also that the company will endeavor, so far as possible, to \u201cprotect the interest of Bendix against any other dealer selling said Staver motor cars in territory assigned to\u201d him, and to \u201creimburse\u201d him \u201cto the extent of commissions or discounts herein provided\u201d on any Staver motor cars sold by the company in his territory, except that the company reserves the right to sell one car to each of four named persons living in Chicago.\nThe agreement further states that \u201cit is expressly understood and agreed\u201d that Bendix \u201cis not in any manner authorized or empowered hereunder to conduct business in the name of or for the account of\u201d the company, \u201cnor in their name, nor upon their behalf to enter into contracts with or bill goods to third persons, except as herein otherwise provided, nor in their name nor upon their behalf to make promises or representations with respect to goods other than is contained in the catalogue and literatiire\u201d issued by the company.\nAfter reciting this contract, the plaintiff\u2019s statement of claim then avers, in substance, that in pursuance thereof, plaintiff at once opened a sales office in Chicago and maintained the same during the life of said contract, at an expense of $2,200; that plaintiff gave the said Staver motor cars exclusive representation and faithfully represented the same, by devoting all his time, efforts and energy to promoting the interests of said motor car, and creating a reputation therefor, and by employing assistants, agents and servants at great expense, to the knowledge of defendant, \u00e1nd with its advice, consent and co-operation; that he used all reasonable efforts to promote and increase the sale of said ears by advertising, calling npon prospective buyers, demonstrating, and otherwise, at an expense to him of more than $1,000; that he at once gave an order to defendant, with a deposit of $50, for the manufacture and delivery to him of one car to be kept in stock as a sample and to be used for exhibition and demonstrating purposes, and when ready for delivery, he accepted it and paid for the same the sum of $1,200; that during the life of the contract, to the knowledge of defendant, plaintiff kept said car in stock as a sample and used it for exhibition and demonstrating purposes, at an expense of more than $100 a month; that on or before December 31, 1909, plaintiff \u201ceither took delivery of or made deposit on a total of at least ten of defendant\u2019s motor ears, that is to say, \u201cthat prior to December 31, 1909, plaintiff sold, took delivery of, and paid for five of defendant\u2019s cars, and on that date plain tiff,\u201cin pursuance of the terms of said contract, offered and tendered to the defendant the sum of $250 legal tender, lawful currency of the United States of America, as a deposit, under the terms of said contract, on five of defendant\u2019s motor cars,\u201d which deposit, however, defendant refused to accept; that plaintiff did not conduct business in the name of or for the account of the defendant, nor enter into any contracts nor bill any goods to third persons in its name, nor make any promis\u00e9s or. representations with respect thereto other than as contained in defendant\u2019s catalogue; that plaintiff at all times performed, and was ready and willing and offered to perform, all the covenants required by said contract to be performed by him, but that defendant at no time lived up to the terms thereof; that defendant did not deliver to plaintiff\u2019s customers any car within the time specified, but invariably delayed delivery, and at no time gave to plaintiff the discount agreed upon, but on one pretext or another made some extra charge in every case of sale, which plaintiff paid rather than lose the sale; that about November 1, 1909, defendant refused to perform any part of said contract, and refused to deliver any car to the plaintiff, or his order, unless plaintiff would consent to a reduction of the commissions and discount to be allowed to him, and also to a reduction of the territory in which he was to have the exclusive sale of said cars; and that on January 2, 1910, defendant arbitrarily, and without right, pretended to cancel the contract, and thereafter refused to recognize it in any way. The statement then avers that by reason thereof, plaintiff was hindered from selling a great many, to-wit, 40 cars, on which his discounts and commissions would have been $500 per car; also that defendant, during the life of the contract, sold and delivered in his territory a great many, to-wit, 50 cars, upon which he is entitled to commissions amounting to $500 per car. The statement further avers that by a supplemental agreement, made May 14th, 1909, the rate of discount was changed from thirty per cent, to \u201c20 and 10 per cent, figured according to the usual custom,\u201d from the list or catalogue price of such cars.\nIn support of the judgment of the court below, appellee\u2019s counsel maintain, in substance, that the agreement set out in the statement of claim does not create any agency but is merely a contract of purchase and sale; that when so construed, it is void for want of mutuality, and also because \u201cit is a contract for an option\u201d in violation of section 130 of the Criminal Code; and that even if it was a valid contract, the plaintiff\u2019s statement of claim fails to show that it was not \u201cautomatically terminated\u201d by a failure, on plaintiff\u2019s part, to purchase, or become liable for the purchase, of at least ten cars on or before December 31, 1909.\nWe are disposed to agree with the contention that the contract does not create an agency. While it is true that it is entitled \u201cAgency Agreement,\u201d and while it is also true that it purports to \u201cgrant\u201d to the plaintiff an exclusive right to sell defendant\u2019s motor ears in a specified territory for a specified period of time, yet most, if not all, of the other provisions of the contract are wholly inconsistent with, and repugnant to, any theory of agency. For example, Bendix is required to open a salesroom, to keep therein a sample car, and to use all reasonable effort to promote sales'; but he is expressly prohibited from making contracts or sales in the name of the defendant, or for its account, or even \u201cin its behalf.\u201d He is given the \u201cex: elusive right to sell\u201d Staver cars in the prescribed territory, but he must \u201cpay for such ears upon the terms aforesaid,\u201d viz.: cash on delivery. Even the sample car is required to be so paid for in advance. Defendant agrees that it will collect from any customer of Bendix the amount coming to him upon any car sold, but is only to do this upon his request, and in such case it must \u201cat once turn over\u201d to him the difference between the amount due from him to defendant on such car and the amount paid by the customer. In order to keep the contract alive after December 31, 1909, Bendix is required to \u201ctake delivery of or make deposit on\u201d i. e. to purchase) at least ten cars on or before that date. It is apparent from these provisions, that the parties intended that Bendix should not act as the agent of defendant in making sales, but should act entirely for himself, in his own name and on his own responsibility; that he should buy outright from the defendant and pay cash on delivery for all such cars as his trade would require, which should not be less than ten cars during the period prior to January 1, 1910. The mere fact that the parties entitled their agreement an \u201cAgency Agreement\u201d does not make it such, even when followed by a grant of an exclusive right to sell, where it appears from the whole contract that the parties intended that the title to the property involved should pass to the alleged \u201cagent\u201d upon delivery. Alpha Checkrower Co. v. Bradley, 105 Iowa 537; Heywood v. Doernbecher Mfg. Co., 48 Ore. 359; Mack v. Drummond Tobacco Co., 48 Neb. 397; Peoria Mfg. Co. v. Lyons, 153 Ill. 427.\nAs to the question of mutuality, it is claimed by appellee\u2019s counsel, that although by the terms of the contract the defendant was bound, the plaintiff was not bound, and, therefore, it is said the contract is purely unilateral and void. It is urged that although by the terms of the contract defendant gave to Bendix an exclusive right to sell its motor cars in certain territory for a certain period and for a certain price, and also agreed to give him a specified discount on all sales made, either by himself or by defendant, during that time within such territory, yet the plaintiff on his part agreed to do nothing except at his election. We do not so construe the contract. Bendix expressly agrees to maintain a sales office in Chicago, to buy from the defendant and pay for one of its motor cars, and keep it \u201cin stock as a sample to be used for exhibition or demonstration purposes,\u2019\"\u2019 and to use all reasonable effort to promote the sale of defendant\u2019s cars. In view of the evident scope and purpose of the whole contract, it is apparent that these promises on the part of Bendix formed a very important, if not the most essential, part of the consideration for the promises of the defendant. The performance by Bendix of this part of the agreement necessarily involved the expenditure by him of both time and money in very considerable amounts. He could neither evade the performance of these undertakings on his part, nor elect not to perform them, without at once incurring a liabliity to the defendant for a breach of his contract. They were good and valuable considerations, and we are of the opinion that the contract was therefore mutual and binding on both parties thereto.\nIt is next claimed that the contract is an \u201coption\u201d contract and void under section 130 of the Criminal Code, and the case of Schneider v. Turner, 130 Ill. 28, and similar later cases are relied on. In Schlee v. Guckenheimer, 179 Ill. 593, the same claim was made as to a contract by which Guckenheimer sold to Schlee \u201cfive cars of sample B barley at 62 cents a bushel, and five cars of sample 0 barley at 57 cents a bushel,\u201d with a further provision that if the samples are found satisfactory \u201cSchlee has the privilege to order 10,000 bushels more of each grade same price, any time to December 31, 1887.\u201d As to the first part of the contract, relating to the sale of the samples, the court held it to be a contract of sale; and as to the privilege of ordering more of the same kind as the samples, the court said that this clause \u201cis a mere offer to sell 10,000 bushels each of two different grades of barley, according to sample, at a specified price for each grade, the offer to be accepted by a specified time. The clause does not constitute a contract for an option, such as that in Schneider v. Turner, 130 Ill. 28. * * * This proposition or offer is similar to everyday business transactions among the people of this state with reference to every character of commodities purchased for use. The offer to sell such a commodity at a specified price, if accepted by a specified time, does not constitute a violation of the statute. Its acceptance within that time is not prohibited or made a criminal offense, but is an every-day transaction- necessary in carrying on business. There is nothing in this contract that is prohibited by the laws of this state and hence it is not void.\u201d The same reasoning was applied, in Kantzler v. Bensinger, 214 Ill. 589, to a contract of sale of the controlling interest in a corporation containing a provision to the effect that the purchasers of the interest would also buy 400 shares of stock retained by the sellers, at a certain price at the end of five years, if the latter then desired to sell. The court there said (p. 596): \u201cThere is nothing immoral or illegal in that feature of the contract or anything therein which partakes of the nature of a gambling contract, and we see no reason why it should not be enforced if the plaintiffs, or either of them, accepted its provisions as to said unsold shares of stock at the expiration of the five years by offering to deliver to the defendants all of the stock or the part owned by either of the plaintiffs. True, the parties to whom the offer was made had the right to accept or reject the offer. When accepted, however, it became a binding contract, and such a contract as the courts will enforce.\u201d\nIn fhe present case, the parties made a definite contract for the purchase and sale of at least one motor car as a sample, with the further agreement on the part of the seller to sell to the purchaser such additional motor cars as the latter might be able to sell to his trade within a definite time at a stipulated price per car. There is nothing in this, that partakes, in any manner, of the character of a gambling transaction, and under the authorities above cited, the agreement must be construed as an offer, which, when accepted became a binding contract, for the sale and delivery to Bendix of the number of motor cars included in the acceptance.\nBut it is said that this contract contains a continuing offer, and that even if good as to the part accepted, it may be withdrawn at any time as to the part which was not in terms accepted. In view of the averments in the statement of claim to the effect that plaintiff, relying upon the whole contract, made large expenditures and devoted much time to building up a reputation, and thereby creating a demand, for defendant\u2019s machines, we do not think defendant would have any lawful right to thereafter withdraw its offer without liability for actual damages, if any, except for the reasons stated in the contract,\u2014i. e., for violation of any of its provisions.\nAs to the claim that the giving of a \u201cfirst refusal\u201d of a certain' number of cars per month constitutes an illegal option, the rule is well settled that where an option feature of this sort is found in a contract containing other provisions, and is only incidental to the main transaction, if the latter is a legitimate business transaction, the option is not illegal. Kantzler v. Bensinger, supra; Wolf v. National Bank of Illinois, 178 Ill. 85; Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85; Osgood v. Skinner, 211 Ill. 229.\nIt is last claimed that the plaintiff\u2019s statement of claim does not show that Bendix ordered a total of at least ten cars within the time limited by the contract, and that therefore it must be assumed that the contract ceased by its own terms to have any effect or force after December 31, 1909. If this were true, it would not authorize the court to strike out the statement altogether and dismiss the suit, for the reason that it appears from the statement that the plaintiff claims that defendant itself sold cars prior to that date in. the territory assigned to plaintiff, and thereby incurred a liability to plaintiff for discounts or commissions thereon. We think, however, the objection to the statement is not well taken. It states, in the language of the contract, that on or before December 31, 1909, plaintiff \u201ceither took delivery of or made deposit on a total of at least ten of defendant\u2019s motor cars.\u201d This is sufficient as an averment of a tender of performance on the part of plaintiff, as against a general motion to strike out the whole claim as \u201cunfounded in law.\u201d\nAfter due consideration of the points and authorities submitted to us, we think the plaintiff\u2019s second amended statement of claim states a good cause of action and that therefore the court erred in striking it out and dismissing the suit. We refrain from discussing the proper measure of damages in such a cause of action, as we do not regard that question as properly before us at this time.\nThe judgment of the Municipal Court will be reversed and the cause remanded.\nReversed and remanded.", "type": "majority", "author": "Mr. Justice Fitch" } ], "attorneys": [ "Brothers & Mills, for appellant.", "Bulkley, Gray & More, for appellee." ], "corrections": "", "head_matter": "Vincent Bendix, Appellant, v. Staver Carriage Company, Appellee.\nGen. No. 17,460.\n1. Agency\u2014what contract does not create. A contract does not create an agency, though it is1 entitled \u201cAgency Agreement\u201d and purports to grant to plaintiff an exclusive right to sell defendant\u2019s motor cars in a specified territory for a certain time, where plaintiff is prohibited from making contracts or sales in defendant\u2019s name or behalf, or for its account, and must pay cash for cars on delivery, and defendant may collect from plaintiff\u2019s customers only on request and must immediately turn over the difference.\n2. Contracts\u2014mutuality. A contract is mutual and binding on both parties thereto where it is apparent that plaintiff\u2019s agreement to maintain a sales office, to buy one of defendant\u2019s motor cars and keep it as a sample, and to use all reasonable efforts to sell such cars, formed an important part of the consideration for defendant\u2019s promises to furnish cars, to give an exclusive territory and to give a discount on all sales made therein by either plaintiff or itself.\n3. Contracts\u2014what not an option contract. A contract is not void as an \u201coption\u201d contract under Crim. Code, \u00a7 130, where it provides for the sale of one motor car to plaintiff as a sample and for the sale of additional cars as he sells them to his trade within a specified time at a certain price, though plaintiff is given a \u201cfirst refusal\u201d on a certain number of cars a month, since such provision is incidental to the main transaction.\n4. Contracts\u2014when agreement is offer which cannot he withdrawn. \"Where a contract provides for the sale of one motor car to plaintiff as a sample and of additional cars as he is able to sell them to his trade within a definite time at a certain price, the agreement is to be construed as an offer which, when accepted, becomes binding, but it is not a continuing offer which may be withdrawn by the seller at any time as to the part not accepted, where plaintiff relying on the whole contract makes large expenditures and devotes time to building up a reputation and thereby creates a demand for the cars.\n5. Pleading\u2014what averment of tender of performance of contract sufficient. There is a sufficient averment of tender of performance of a contract as against a general motion to strike out the claim as \"unfounded in law,\u201d where such contract provides that plaintiff must take delivery or make deposit on a certain number of motor cars within a specified time and the statement of claim in the language of the contract specifies that plaintiff either took delivery or made deposit on such number within the time.\n6. Pleading\u2014statement of performance of contract. Though a statement of claim for breach of contract does not show that plaintiff ordered a certain number of cars within a time specified by the contract, the court is not authorized to strike out the claim and dismiss the suit where it appears from the statement that plaintiff claims that defendant sold cars in his territory prior to the date fixed and thereby became liable to him for commissions.\nAppeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.\nReversed and remanded.\nOpinion filed November 29, 1912.\nBrothers & Mills, for appellant.\nBulkley, Gray & More, for appellee." }, "file_name": "0589-01", "first_page_order": 607, "last_page_order": 617 }