Rutledge v. McAfee

Irving, J., delivered the opinion of the Court. The appellants being farmers and dealers in canned goods, bought of the appellees certain fertilizers in January, 1888. In payment for the fertilizers, the appellants agreed to furnish certain canned sugar corn of the pack of 1888 at ninety-five cents per dozen. The contract was in writing, and contained this language: “ 95 c. price of corn guaranteed, i. e. should any of said pack of 1888, be sold for less, said McAfee Bros, to have the advantage of such abatement, and at same rate.” The brand contracted to be delivered was “No. 2 standard sugar corn.” In October, 1888, the appellees, who were commission merchants, boug'ht some corn from the appellants for ³⁰ the price of which this suit is brought, and the appellees pleaded set-off as their third plea, in which they set out the agreement and guarantee in the first contract of January, 1888, and aver that in consequence of the plaintiffs (appellants) having sold some of their corn at ⁷⁵ cts. per dozen, they are entitled to abatement from the price of the corn delivered under the first contract at 95 cents per dozen, to seventy-five cents per dozen, which reduces the plaintiffs’ claim to ten dollars and thirty-five cents, which is tendered in full settlement of accounts.

To the pleas of never indebted and never promised, as alleged, the plaintiffs joined issue, and as to the plea of set-off the appellants replied specially, admitting the sale to the appellees of two hundred and twenty cases of corn at 75 cts. per dozen, as alleged in defendants’ plea, but aver “that said sale was made at said price as a concession to the defendants, and in consideration of the fact that the defendants purchased of the plaintiffs the lot of Bald Eagle corn mentioned in the contract of October 10th, 1888; and the plaintiffs further say, they have not sold, since the contract made with the defendants, bearing date January 31st, 1888, any of the O. A. R. & Brothers’ brand of corn of the pack of 1888, for a price less than ninety-five cents per dozen, except only the special lot of two hundred and twenty cases; and the plaintiffs further say, that it is not true, as stated in said third plea of the defendants, that the plaintiffs have ever agreed to take a price less than ninety-five cents per dozen for any corn of the said O. A. R. & Brother’s brand, excepting only as to the lot of two hundred and twenty cases above mentioned.” The appellees joined issue on the replication to the first and second pleas, and demurred to the replication to the third plea, or plea of set-off. The demurrer involves a construction of the guarantee set up in the ³¹ plea, with the defendants’ view of its proper construction; and replied to hy appellants so as to indicate their view of its interpretation. We think there can be no doubt that the guarantee was exacted and given for protection to the appellees. Whatever that protection was, gives a key to the construction of the contract.

It can not be supposed that the appellees were securing a guarantee that the vendor would never sell them at a lower price than was charged in the contract of January, 1888. People always buy at as low a figure as they can; for as consumers or as dealers they make or save by it. Looking at the situation of the parties respectively, and the subject-matter of the contract,