
    Howard W. Brown, Plaintiff, v. Babcock Electric Carriage Company, Defendant.
    (Supreme Court, Trial Term, Broome County,
    April, 1910.) 
    
    Sales — Nature of contract — Termination or abandonment of contract.
    Where a company engaged in selling motor cars enters into a contract with manufacturers of motor cars by which it acquires the exclusive right to sell the latter’s cars within a certain territory during a certain period, and the contract provides, among other things, that the dealer is to deposit with the manufacturer $100 on each and every car purchased which is to apply on the purchase price of each ear when shipped and to be deducted from invoice
    ■ and sight draft, and the company deposits with the manufacturer upon the making- of the contract $200 and orders two cars to be shipped as desired by the company during said period, and the company thereafter gives an order for one car and the manufacturer credits $100 of the deposit upon the invoice of the car ordered and no other order is given by the company for a car during the period specified in the contract, the company cannot maintain an action against tlie manufacturer after the expiration of such period to recover the balance of the deposit.
    Action to recover moneys deposited with defendant under an agreement between the parties for the sale of motor cars.
    U. C. Lyons, for plaintiff.
    M. F. Dirnberger, Jr., for defendant.
    
      
       Received too late for insertion in proper place.—[Rep.
    
   Lyon, J.

It was conceded upon the trial of this action that, on the 26th day o-f January, 1907, the Binghamton Motor Car Company, to- whose rights of action, if any, the plaintiff has succeeded, deposited with the Babcock Electric Carriage Company $200, and that thereupon a memorandum of agreement of that date was executed by the parties, by which agreement the carriage company, in consideration of an order placed with it by the .motor car company for two Babcock motor cars, granted to the motor car company the exclusive right to sell -all styles of Babcock motor cars in Broome county and in any unoccupied territory, until September 1, 1907, at which time the contract was to .expire. Such two motor cars were to be of models shown in the current edition of defendant’s catalogue, and to be shipped as desired on or before September 1, 1907, the motor car company to pay the defendant therefor the list price, less 20 per cent. Said contract provided that: “ The dealer is to deposit with the manufacturer one hundred dollars ($100) per car, on each and every car purchased, which is to apply on the purchase price of each car when shipped, and to be deducted from invoice and sight draft.”

The motor car company, by said agreement, contracted not to deal in any other make of electric pleasure vehicles,, or to solicit orders for, or sell, or deliver, any Babcock cars outsidé the territory mentioned in the contract, without first obtaining permission of the defendant.

It was also conceded upon the trial that, between the time of the mailing of said agreement and September 1, 1907, the motor car company ordered out, and there was shipped to it by the defendant, one car, upon the invoice of which $100 of the $200 so deposited was credited; that the motor car company never called for the other car mentioned in said contract, nor designated to the defendant the make or kind of a car which it desired shipped, or in fact that it desired any ear shipped; and that no car was in fact ever shipped, and no sight draft made, and that the defendant still retains $100 of the sum so deposited. This action has been brought to recover this remaining $100. A trial by jury was waived, and the ease submitted to the court for decision.

I think the plaintiff is not entitled to recover in this action. The motor car company, in order to obtain the exclusive right to sell the cars of the defendant company within the prescribed territory for the season of 1907, placed with the defendant an order for two motor cars, and deposited with the defendant $100 per car, This deposit was an initial payment upon the purchase price of the cars ordered, and was an assurance to defendant that the motor car company would prosecute its agency to the extent at least of disposing of two of defendant’s cars. In consideration of such order and deposit, the defendant granted to the motor car company such exclusive right; and no claim is made by plaintiff that the defendant sold or allowed any other agent to sell its cars within the territory during the contract period, or that defendant failed in any respect whatever to fully observe upon its part all the terms of the agreement. Thus there is presented the situation of .plaintiff seeking to recover a portion of the consideration of the contract after the motor car company had received and accepted the full benefit thereof. This plaintiff cannot do. Had the motor car company called for the shipment of the second car, and the defendant failed to ship it, or to apply the remaining $100' upon the purchase price thereof, or otherwise violated the teims of the contract in a material respect, a different case would have been presented. It is not only the duty of him who seeks to recover money paid upon a contract to be ready -and willing to perform upon his part, hut, where the acts are concurrent, he must demand performance from the other party. But the motor car company never demanded the shipment of the second car, and defendant was never in any way whatever in default under the contract. Hence the motor car company never had the right to abandon the contract or to recover any portion of the money deposited.

Eor aught that appears-, the defendant was at all times prepared and willing to ship any car which the motor car company might designate. Whether the defendant’s - loss of profit by reason of the failure of the motor car company to complete the purchase of the second car was less or more than the $100 remaining in defendant’s hands, is not material. The ease of Cedar Rapids Auto & Supply Co. v. Jeffrey & Co., 139 Iowa, 7; 116 N. W. 1054, is in many respects similar to the ease at bar.

The complaint must be dismissed upon the merits.

Complaint dismissed.  