July 1, 1911.] 



THE INDIA RUBBER WORLD 



377 



This point is of special interest today. Most of the large con- 

 tracts for the sale of rubber and other merchandise at present 

 are made between corporations, instead of between individuals, 

 either acting by themselves or as partners, as was the case a few 

 years ago. The court thus affirms the doctrine which it 

 had already laid down, to the effect that the president of a cor- 

 poration, in the ordinary course of business has power to make 

 routine purchases which will be binding on the corporation, 

 regardless of any by-laws which may exist limiting his powers, 

 unless knowledge of such by-laws is brought home to the persons 

 with whom these officers deal. 



The injustice of any other rule is apparent; for were the law 

 not as it is, it would be possible for the president of a company 

 to make contracts which, at will, the corporation could repudiate 

 merely by producing by-laws upon its minute books limiting 

 the president's powers, which by-laws were known only to itself. 



Another objection raised to the contract was that it was void 

 under the Statute of Frauds. This point is of particular interest, 

 because it is probable that a very large number of the contracts 

 made daily among rubber merchants here are, strictly speaking, 

 invalid under this statute. 



It will be recalled that the Statute of Frauds is a law passed 

 in the reign of King Charles II, providing that "no contract for 

 the sale of any goods, wares or merchandise, for the price of 

 ten pounds sterling or upwards, shall be allowed to be good, 

 except the buyer shall accept part of the goods so sold, and 

 actually receive the same, or give something in earnest to bind 

 the bargain, or in part payment, or that some note or mem- 

 orandum in writing of the said bargain be made and signed by 

 the parties to be charged by such contract, or their agents there- 

 unto lawfully authorized.'' 



The contract in this case was entered into in this way : the 

 president of the buyer called up an officer of the selling corpora- 

 tion in New York, on the telephone, and ordered the rubber. 

 During that day the selling company mailed a form of contract 

 signed by it to the buyer at its office, which was outside the 

 State of New York. This contract was never signed by the 

 buying company, but various letters were written by it to the 

 seller, mentioning the contract and its terms ; and these, the 

 court held, were a sufficient memorandum of the contract to 

 permit of its being a vaHd contract under this Statute of Frauds. 

 Had no such letters passed between these companies subsequent 

 to the making of this contract, it probably would have been un- 

 enforcible by the seller, had the buyer repudiated it, as was the 

 case here. This statute is one of decided merit, but sometimes, 

 by hiding behind its technical provisions, one is able to avoid 

 liability on a contract, which in every other way is valid and 

 binding. Merchants should bear in mind that sales of rubber 

 made as this one was made, are unenforcible by the seller, in 

 the absence of some confirmation in writing by him, or at least 

 until some delivery has been made. 



Another question of decided interest to merchants was raised 

 in this case. The buyer repudiated the contract not long after 

 it was made, and about this same time the market began rapidly 

 to decline. So. much did it decline that the difference between 

 the contract price and the market price on the delivery date 

 represented a very considerable sum. The buyer contended that 

 as soon as it notified the seller that it would refuse to accept 

 the goods when the time for delivery arrived, it was the duty 

 of the seller to at once go into the market and sell these goods 

 in order to prevent further loss. This contention was not sus- 

 tained by the court, but it affirmed its former rulings, which 

 were to the effect that the seller of an article which has a con- 

 stant market value, the price of which can be established from 

 day to day, is not bound to sell as soon as the buyer gives notice 

 of an intention to repudiate the contract ; but instead, has a per- 

 fect right to refuse to accept such a repudiation, and may con- 

 tinue to regard it as a valid and enforcible contract, and, if 



he wishes, perform his contract to the letter, by tendering the 

 goods to the buyer when the delivery day arrives, despite any- 

 thing the buyer can do. If this course is pursued the damages 

 will be the difference between the market price on the day of 

 delivery and the price named in the contract. 



It often happens that merchants sell goods on a declining 

 market and afterwards the customer gives notice that he will 

 not take the goods when the delivery day arrives. Under such 

 conditions the seller, uncertain of his legal rights, rushes into 

 the market and sells the goods. This he is under no obligation 

 whatever to do. In the case considered by the Court of Appeals, 

 the seller constantly adhered to its determination to carry out 

 its contract in good faith, regardless of the buyer's repudiation, 

 and in so doing it was fully upheld by the Appellate Division 

 and by the Court of Appeals. 



A CROWN FOR THE 'SPEED KING." 



"T^ HE "Firestone Speed King Crown" has been presented to 

 ■^ Bob Burman in recognition of his wonderful speed record 

 of 141.73 miles an hour at Daytona, Florida. This is the fastest 

 ever traveled by man, and in attaining this speed Burman broke 

 the world's record for kilometer, mile and two miles. The 



The Speed King's Crown. 



crown was donated by H S. Firestone, president of The Fire- 

 stone Tire & Rubber Co., whose tires Burman used on his 

 Blitzen Benz. The crown itself is a copy of the one used at the 

 coronation of King George V and is a marvel of the gold- 

 smith's art. 



TWITCHELL AIR GAGE PATENTS SUSTAINED, 



Many manufacturers of pneumatic tireS issue a schedule, 

 giving the pressures to which the various sizes should be inflated 

 to ensure long and uniform service. An air gage is indis* 

 pensable for the regulation of this pressure, one of the devices 

 employed for this purpose being the Twitchell air gage, manu- 

 factured by the W. D. Newerf Rubber Co. (Los Angeles, Cali- 

 fornia.) The validity of the Twitchell patent was attacked and 

 the owners, the above company, resorted to the courts to estab- 

 lish its validity and protect themselves from infringements. 

 Under an interlocutory decree, recently handed down by the 

 United States Circuit Court for the Southern District of Cali- 

 fornia, the validity of the patents has been upheld, infringers 

 restrained and damages allowed against them with costs. 



