Plaintiff (defendant in counterclaim): Yangzhou Fulkan Machinery Manufacturing Co., Ltd., domiciled at No. 8, Huagang Road, Hanjiang Industrial Park, Yangzhou City 1.
Legal representative: Zhu Qi'an, general manager of the company.
Attorney-at-Law: Xie Hui, female, employee of the company.
Defendant (counterclaim plaintiff): Lianyungang Xuchen Automobile Trading Co., Ltd., domiciled at Shop 4, New Century Trade City, No. 282, Jiefang East Road, Haizhou District, Lianyungang City.
Legal representative: Jiang Shenglin, manager of the company.
Attorney ad litem: Yu Fuding, lawyer of Jiangsu Huapeng Law Firm.
The plaintiff (defendant of the counterclaim) Yangzhou Fuerkan Machinery Manufacturing Co., Ltd. (hereinafter referred to as the Fuerkan Company) and the defendant (the plaintiff of the counterclaim) Lianyungang Xuchen Automobile Trading Co., Ltd. (hereinafter referred to as the Xuchen Company) made a contract dispute. After the court filed the case on May 10, 2021, the ordinary procedure was applied in accordance with the law, and the case was publicly heard on October 27, 2021. The plaintiff (defendant in the counterclaim), the attorney ad litem of Vulkan Company, Xie Hui, and the defendant (the plaintiff in the counterclaim), Yu Fuding, the attorney ad litem of Xuchen Company, both appeared in court to participate in the lawsuit. The case has now been concluded.
The plaintiff (defendant in the counterclaim) Vulkan Company filed a lawsuit with this court: 1. Order the defendant to pay the payment of 185,000 yuan, the interest of 12,710 yuan, the late performance penalty of 67,500 yuan, and the liquidated damages of 67,500 yuan, totaling 332,710 yuan. During the trial, the plaintiff Vulkan Company clarified the calculation of interest as: from September 10, 2020 to October 27, 2021, it will be 32,158.5 yuan, and from October 28, 2021 to the date of actual payment, it will be calculated according to Four times the LPR continues to be calculated. Facts and reasons: On July 2, 2020, the plaintiff and the defendant signed a contract with a price of 150,000 yuan for a "3-line 6-axle low-flat semi-trailer". On July 22, 2020, at the request of the defendant, the subject matter was changed to "5-line 10-bridge low slab", and the price was changed to 250,000 yuan. After negotiation, the final contract was signed on July 24, 2020, and the total price was set at 225,000 yuan. After the contract was signed, the defendant transferred 10,000 yuan on July 2, 2020 and 30,000 yuan to the plaintiff's account on July 22, 2020. According to the contract, the plaintiff should receive the 40,000 yuan deposit within 40 days from the date of receipt. That is, delivery before September 10, 2020. The plaintiff performed its obligations strictly in accordance with the contract, completed the product on September 6, 2020 and informed the defendant to pick up the goods in time, but the defendant kept refusing to pick up the goods. To this day, the defendant has not fulfilled its due obligations, which has led to the continuous increase of various costs for the plaintiff.
The defendant (plaintiff in the counterclaim) Xuchen Company argued that, firstly, the relationship between the two parties was not a sales contract, and Vulkan Company processed and manufactured in accordance with the technical specification confirmation and design drawings confirmed by the company. ;Secondly, there is no legal basis for the company's claim of interest, delay performance penalty and liquidated damages cannot be claimed at the same time according to the contract, and the two are applicable in different situations; thirdly, the purpose of our company's customized vehicles is to resell to third-party end users , due to the overdue delivery of Fuyijian Company, the end user applied to the defendant to return the vehicle due to various factors including the reasons why the vehicle could not be delivered on time, so the vehicle involved has no meaning to the defendant. The contractual purpose of the difference is also not fulfilled. Xuchen Company also filed a counterclaim request: 1. To rescind the "Sales Contract" signed by the counterclaim plaintiff and the counterclaimed defendant on July 24, 2020; 2. Order the counterclaimed defendant to return double the deposit amounting to 80,000 yuan; 3. Order the counterclaimed defendant to return Pay 13,000 yuan to the plaintiff in the counterclaim for attorney's agency fees arising from rights protection.
The counterclaim defendant (plaintiff) Vulkan Company argued against the counterclaim and requested the court to dismiss Xuchen Automobile Company's counterclaim request in accordance with the law. The two parties signed a sales contract on July 24, 2020. It is stipulated in Article 1, Item 8, Liability for Breach of Contract, that the buyer has no right to rescind the contract, because if the rescission conditions stipulated in the contract are not met, the contract shall be deemed to continue to be performed. On September 6, 2020, the seller completed the completion of the vehicle storage and notified Xuchen Company to pick up the car in time, but Xuchen Company has always refused to fulfill the obligation to pay for the car and pick up the car in the contract, so Xuchen Company should be liable for breach of contract. There is no factual and legal basis for Xuchen Company’s request for double return of the deposit. According to the relevant provisions of the Civil Code, the party paying the deposit fails to perform the contract and has no right to return the deposit. Xuchen Company failed to pick up the car for 412 days under the urging of our company for many times, which is a non-performance of the contract, and has no right to request the return of the deposit. It should continue to perform the contract payment obligation to pick up the car.
The parties submitted evidence according to the law, and the court organized the parties to exchange evidence and cross-examination. Evidence that there is no objection to the parties shall be confirmed by this court and corroborated in the file. The court found the facts as follows:
In July 2020, Liu Feng ordered a low-bed semi-trailer from Xuchen Company through the introduction of a third-party company. Xuchen Company (the buyer, Party B) then agreed with Vulkan Company (the supplier, Party A) on July 24, 2020. ) signed a "sales contract" numbered "FEK (X) 2020072401", stipulating that Party B will purchase a "5-line 10-axle low-flat semi-trailer" from Party A at a price of 225,000 yuan. The payment method is that Party B prepays the contract deposit of 40,000 yuan when the contract is signed; when the product is submitted to the customer, the customer will pick up the car after paying the total contract price in one go. The delivery time is 40 days, which is subject to the day when the contract deposit is received, otherwise the delivery time will be postponed according to the day when the deposit is received. Party B is responsible for the transportation of the products, arranges the consignee to pick up the products at the location of Party A's company, and Party A fulfills the delivery obligation by delivering the products to Party B or the consignee designated by Party A. Regarding the liability for breach of contract, the two parties agreed: "1. Party A shall deliver the goods as agreed, and the late delivery shall pay Party B a daily late performance fee of 0.5% of the total product value (up to 30% of the total product value); 60 days, Party B has the right to cancel the contract. If Party A's delivery delay is caused by Party B's need to redesign, change product requirements, etc., it will not be regarded as overdue delivery. 2. Although Party A has overdue delivery for more than 60 days, but If Party B terminates the contract without a written notice, it shall be deemed that the contract continues to be valid. If Party A delivers the goods before Party B sends a written notice of termination, Party B shall not request to terminate the contract on the basis of Party A's overdue delivery of more than 60 days. Delivery obligations, if Party B does not arrange for someone to pick up the goods or refuses to receive the goods without justifiable reasons, it constitutes a breach of contract. Party A has the right to return the goods without returning the deposit, and may require Party B to pay 30% of the total product amount as liquidated damages and Pay the shipping cost. In addition, if there is a deposit, it can be used to offset the deposit. 4. Party B shall pay the payment for the goods as agreed, and the overdue payment shall be 0.5% of the total contract value. 30% of the contract amount); if the overdue exceeds 60 days, Party A has the right to terminate the contract and requires Party B to pay 30% of the total contract amount as liquidated damages. ...... 7. If either party A or B violates this contract, the breaching party shall bear the responsibility of the other party All expenses paid to investigate the liability for breach of contract, including but not limited to attorney fees, litigation fees, preservation fees, industrial and commercial file transfer inquiry fees and other reasonable expenses." On the same day, Xuchen Company issued a technical specification confirmation letter to Vulkan Company. Confirm the relevant configuration and technical parameters of the low-bed semi-trailer involved in the case, and provide a production drawing.
On July 2, 2020, Xuchen Company transferred a deposit of 10,000 yuan to Vulkan Company; on July 22, 2020, Xuchen Company transferred a deposit of 30,000 yuan to Vulkan Company.
After the contract was signed, Vulkan began to organize the production of low-bed trailers involved in the case. On September 9, 2020, the contact person of Xuchen Company asked the staff of Vulkan Company on WeChat, "When can I bring it up?" The staff of Vulkan Company replied that "it is estimated that it will be almost three or four days". On September 14, I took a photo of the product and sent it to the contact person of Xuchen Company, and said, "We have changed everything according to his requirements" and "including the gooseneck lift, it has also been changed to a spiral type." On September 19, 2020, the staff of Vulkan Company notified Xuchen Company that the vehicle suspension bridge involved in the case had a quality problem. The contact person of Xuchen Company contacted the suspension bridge cooperation unit, which believed that the problem was due to the drawings of Vulkan Company. something wrong. On September 21, 2020, the contact person of Xuchen Company sent the chat record with the company's customer to the staff of Vulkan Company. In the chat record, the customer informed the contact person of Xuchen Company that the delivery date was September 10. After that date, the customer will not want the car. The staff of Xuchen Company said in WeChat that "the customer wants a car with me" and "the delivery time has passed", and the staff of Vulkan Company said "if you want it Come to mention this week.” The contact person of Xuchen Company asked, “When can I mention it?” The staff of Vulkan Company said, “Come on this weekend.” On September 23, 2020, the contact person of Xuchen Company said in WeChat that "the user is ready to check the car", and the staff of Vulkan Company said, "Come on weekend, we moved in these two days, the old factory is gone, we are in the new one. The factory has not been fully packaged, and there is no place to stay.” September 21, 2020 is Monday, September 23 is Wednesday. On October 14, 2020, the staff of Vulkan Company sent a set of photos of the vehicles involved in the case to the contact person of Xuchen Company through WeChat.
On February 1, 2021, Liu Feng filed a lawsuit with the local court, requesting to rescind the sales contract with Xuchen Company for the vehicles involved in the case. The local court found out after hearing that at the end of September 2020, Liu Feng went to Vulkan. The company checked the vehicle and believed that the vehicle did not meet the agreed standard. Liu Feng also said that no one notified him to pick up the car after the end of September 2020. Xuchen Company did not provide evidence in this case as to whether it notified Liu Feng to pick up the car or when to pick up the car. In the end, the local court believed that Xuchen Company violated the principle of good faith and also had breach of contract, so it supported Liu Feng’s claim, rescinded the contract between the two parties, and asked Xuchen Company to return the advance payment paid by Liu Feng.
On December 19, 2020, Vulkan Company sent a legal letter to Xuchen Company, saying that the company had fulfilled its obligations as agreed in the contract, but after contacting Xuchen Company, the goods had not been picked up, resulting in the goods being stored in Vulkan Company, This caused additional management costs for the company, so Xuchen Company was required to take delivery of the goods within 5 days of receiving the letter.
After Vulkan Company issued the above legal letter, Xuchen Company never took delivery of the goods nor paid the remaining payment. During the trial, Xuchen Company stated that it never notified Vulkan Company in writing to terminate the contract between the two parties.
This court believes that a contract of contract is a contract in which the contractor completes the work according to the requirements of the orderer, delivers the work results, and the orderer pays remuneration. Contracts include processing, custom-made, repair, reproduction, testing, inspection and other work. In this case, although the contract signed between Xuchen Company and Vulkan Company is called "Sales Contract", Xuchen Company provides the corresponding configuration parameters and production drawings of the ordered vehicles. Vulkan Company is based on Xuchen Company's In order to request the production and manufacture of the vehicles involved in the case, a custom-made contract relationship should be established between the two parties.
The "Sales Contract" involved in the case is an expression of the true intentions of both parties, and does not violate the mandatory provisions of laws and regulations. In this case, according to the chat records of the staff of both parties, the vehicle involved in the case still had certain quality problems on September 19, 2020. After being inquired by Xuchen Company, Vulkan Company informed that it could be used in the week of September 21, 2020. Pick up the car on the weekend; according to the facts found in another case, the customer of Xuchen Company who sold the vehicle involved in the case, namely Liu Feng, an outsider, went to Vulkan Company to check the vehicle involved in the case at the end of September 2020, but did not pick up the car, and since then Xuchen Company Chen Company did not notify Liu Feng to pick up the car again until Liu Feng sued to terminate the contract between him and Xuchen Company in this case; according to the contract between the two parties, Vulkan Company overdue delivery for more than 60 days, and Xuchen Company had The right to terminate the contract, subject to written notice. Therefore, this court believes that Vulkan Company has completed the production and manufacture of the vehicle involved in the case, and notified Xuchen Company to pick up the vehicle no later than September 21, 2020. According to the law, it is not enough to cause the contract to be rescinded. Xuchen Company has never notified Vulkan Company in writing to rescind the contract between the two parties. As a result of fulfilling the corresponding payment and delivery obligations, Vulkan Company incurred corresponding losses and should bear the corresponding liability for breach of contract. Therefore, this court supports Vulkan Company's claim that Xuchen Company should pay the remaining payment of 185,000 yuan. The claim of Vulkan Company for Xuchen Company to bear the liquidated damages is in line with the agreement of both parties, has factual and legal basis, and this court also supports it in accordance with the law. As for the plaintiff itself, there are also factors such as the behavior of delivery later than the agreed time and the loss of the plaintiff, and it is decided to be 30,000 yuan. Regarding the plaintiff's claim that the defendant should pay interest and delay performance, this court believes that the above-supported liquidated damages are sufficient to cover the plaintiff's losses, so this court does not support the plaintiff's claim in accordance with the law. After paying the remaining payment and liquidated damages, Xuchen Company should promptly take away the vehicle involved in the case. At the same time, as for the counterclaim of the counterclaim plaintiff, this court believes that it has no factual and legal basis and should not be supported.
Accordingly, in accordance with Article 7, Article 509, Article 577, Article 579, Article 583, Article 583 of the Civil Code of the People's Republic of China 15. Article 592, Article 1, Paragraph 3 of the Several Provisions of the Supreme People's Court on the Application of Time Effectiveness, and Article 67 of the Civil Procedure Law of the People's Republic of China, the judgment is as follows:
1. The defendant (counterclaim plaintiff) Lianyungang Xuchen Automobile Trading Co., Ltd. shall pay the plaintiff (counterclaim defendant) Yangzhou Fulkan Machinery Manufacturing Co., Ltd. 185,000 yuan for goods and 30,000 yuan for liquidated damages within ten days from the date when this judgment takes effect;
2. The defendant (counterclaim plaintiff) Lianyungang Xuchen Automobile Trading Co., Ltd. shall take the case involved from the plaintiff (counterclaim defendant) Yangzhou Fulkan Machinery Manufacturing Co., Ltd. within seven days after fulfilling the payment obligation determined in item 1 of the judgment. vehicle;
3. Reject other claims of the plaintiff (defendant of the counterclaim) Yangzhou Vulkan Machinery Manufacturing Co., Ltd.;
4. Reject all counterclaims of the defendant (counterclaim plaintiff) Lianyungang Xuchen Automobile Trading Co., Ltd.
If the payment obligation is not fulfilled within the period specified in this judgment, the debt interest during the period of delayed performance shall be doubled in accordance with the provisions of Article 260 of the Civil Procedure Law of the People's Republic of China.
The case acceptance fee of this lawsuit was charged 6,292 yuan according to law, 1,617 yuan was borne by the plaintiff Vulkan Company, and 4,675 yuan was borne by the defendant Xuchen Company. The handling fee of the counterclaim case is charged 2,125 yuan according to law, which shall be borne by Xuchen Company, the plaintiff of the counterclaim.
If you are not satisfied with this judgment, you may submit a petition to this court within 15 days from the date of service of the judgment, and submit a copy according to the number of opposing parties, and appeal to the Intermediate People's Court of Yangzhou City, Jiangsu Province.