Tbe ease turns on tbe sufficiency of tbe record to support an award of damages on defendant’s counterclaim.
It is in evidence tbat on 12 February, 1937, tbe plaintiff, by letter, agreed to refer to tbe defendant for handling all orders or inquiries for Cotton Picking, Southern and Dixieland scenes received by it from tbe states of North Carolina, South Carolina, Georgia, and tbe eastern part of Tennessee. “This agreement to be in effect to and including December 31st, 1937.” On 5 January, 1939, tbe defendant addressed a letter to Mr. Curt Teicb, Sr., of tbe plaintiff firm in which be said: “Your firm sent us a contract, and it is true, it was made out for only one year, 1937. However, we expected it to continue right along, or at least until our stock was reduced considerably. At present we have an inventory of your Dixieland cards and folders amounting to around $4500, so we need this protection now as much, or even more than we did in 1937.” In reply, tbe plaintiff called attention to tbe fact tbat “our letter of February 12, 1937, stated plainly tbat tbe agreement we made was to be in effect to and including December 31st, 1937”; and tbat few orders bad been received during 1938 — in fact, not enough to take tbe trouble to find out by going over tbe ledgers.
It is tbe contention of tbe defendant tbat tbe “course of dealing” thereafter constituted a revival of tbe contract, and tbat tbe matter was properly submitted to tbe jury. Tbe plaintiff contends otherwise and demurs.
Ye are constrained to bold tbat tbe record fails to show a breach of exclusive agency, or contract for exclusive Southern territory, in tbe sale of plaintiff’s publications. Hence, tbe verdict and judgment in respect of tbe defendant’s counterclaim will be stricken out, and judgment entered for plaintiff on tbe issue answered by consent. It is so ordered.
Reversed and remanded.