228 F.2d 528 (8th Cir. 1955), 15290, Rubenstein v. Dr. Pepper Co.

Docket Nº:15290.
Citation:228 F.2d 528
Party Name:Leo RUBENSTEIN, d/b/a The Eagle Bottling Company, Appellant, v. DR. PEPPER COMPANY, a Corporation, and Oliver H. Daniel and Charles H. Chapman, a Partnership, d/b/a B-1 Bottling Company, Clicquot Bottling Company, Dr. Pepper Company and Bonanza Vending Company, Appellees.
Case Date:December 22, 1955
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 528

228 F.2d 528 (8th Cir. 1955)

Leo RUBENSTEIN, d/b/a The Eagle Bottling Company, Appellant,


DR. PEPPER COMPANY, a Corporation, and Oliver H. Daniel and Charles H. Chapman, a Partnership, d/b/a B-1 Bottling Company, Clicquot Bottling Company, Dr. Pepper Company and Bonanza Vending Company, Appellees.

No. 15290.

United States Court of Appeals, Eighth Circuit.

December 22, 1955

Page 529

Roger T. Hurwitz, Kansas City, Mo. (B. T. Hurwitz, Kansas City, Mo., was with him on the brief), for appellant.

Richard S. Righter, Kansas City, Mo. (Lathrop, Righter, Blackwell & Parker, Kansas City, Mo., and William M. Stapleton, Albany, Mo., were with him on the brief), for appellee Dr. Pepper Co.

Charles B. Blackmar, Kansas City, Mo. (Blackmar, Eager, Swanson, Midgley & Jones and Henry I. Eager and Richard G. Poland, Kansas City, Mo., were with him on the brief), for appellee Charles H. Chapman.

Before GARDNER, Chief Judge, and WOODROUGH and VOGEL, Circuit Judges.

GARDNER, Chief Judge.

This appeal is from a judgment in favor of defendants entered on motions for summary judgment. Appellant was plaintiff and the appellees defendants and we shall refer to them as such in this opinion. Plaintiff's second amended complaint contained three separate causes of action referred to in the record as 'Counts'. Count I of said complaint sought recovery against the corporate defendant, Dr. Pepper Company, for the breach of a contract under which plaintiff received an exclusive bottler's distributorship. Count II sought recovery against the individual defendants, Chapman and Daniel, for an alleged conspiracy to induce the Dr. Pepper Company to breach its contract with plaintiff; while Count III sought recovery against all three of the defendants for an alleged conspiracy to breach the aforementioned bottler's agreement.

While Oliver H. Daniel was joined as a defendant in the action he was not served with process and did not appear either in person or by counsel. The other defendants moved separately to dismiss Count III on the ground that said Count III failed to state a claim upon which relief could be granted each defendant stating separate reasons for his motion. The motions were granted and Count III was stricken from the second amended complaint. Thereupon the defendants filed separate answers which in effect admitted the jurisdictional allegations of

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the complaint, admitted the execution of the bottler's license agreement, denied that the contract had been breached by the Dr. Pepper Company and denied that they had conspired to induce the Dr. Pepper Company to breach the same. As an affirmative defense each of the answering defendants alleged that on April 4, 1952 plaintiff for valuable considerations entered into an agreement with Chapman and Daniel whereby he agreed to surrender absolutely his bottler's license agreement to the Dr. Pepper Company and all of his rights, license and franchise as a bottler of Dr. Pepper beverage and products and to deliver said license agreement physically to a representative of the Dr. Pepper Company all on or before April 19, 1952; that by said agreement plaintiff expressly released and forever discharged the Dr. Pepper Company and Chapman and Daniel from all claims and demands which he then had or might thereafter have arising out of or connected with the surrender, relinquishment or cancellation of said franchise or license; that by said agreement plaintiff in effect agreed to and did convey to Chapman and Daniel all bottles, automatic coin single flavor vending machines and all Dr. Pepper syrup, crowns and cartons in his possession on April 19, 1952 and agreed to furnish Chapman and Daniel with a list of all his Dr. Pepper customers to and including said date and agreed not to do anything intentionally which would injure the name or reputation of Dr. Pepper products; that the considerations in money provided by the agreement to be paid by Chapman and Daniel to plaintiff were duly paid pursuant to agreement and are now retained by plaintiff; and that plaintiff thereby fully released and discharged any and all purported claims stated in plaintiff's second amended complaint. Plaintiff in reply to the affirmative defense set up in the answers of the defendants alleged that at the time he signed said instrument 'purporting to be a release of the claim herein sued upon, he had no knowledge of the contents of the same on account of his weak and defective mental condition at the time of such alleged signing, and on account of said weak and defective condition, did not understand anything at all of the nature and quality of his act' of entering 'into an agreement and was not competent to enter into any legal, binding contract at the time alleged by defendant.'

In this condition of the pleadings defendants separately moved for summary judgment dismissing the complaint on the merits on the ground that no genuine issue existed as to any material fact. In support of their motions defendants submitted the deposition of plaintiff, affidavit of defendant Chapman, affidavit of defendant Daniel, affidavits of certain officers of the defendant Dr. Pepper Company and contract of settlement and release set out in their answers. Plaintiff filed no counter showing.

These affidavits submitted by defendants in support of their motions showed without dispute that plaintiff and Dr. Pepper Company had long been in controversy about plaintiff's methods and activity (or lack of activity) in handling plaintiff's territory under his license agreement and that a representative of the franchise department of Dr. Pepper Company, one Gorman Smith, was sent to Kansas City in February, 1952, to locate a new bottler because the company had definitely become dissatisfied with plaintiff's operations; that Smith had previously casually seen Chapman's place of business in Kansas City and after interviewing one or two others solely on his own initiative called Chapman, made an appointment, and went out to see him. This was the first contact or communication of any kind between the Dr. Pepper Company and Chapman or Daniel and in fact neither of them had previously known or met any of the Dr. Pepper people. Smith then asked Chapman if he would be interested in becoming the Dr. Pepper bottler at which suggestion Chapman was considerably surprised. Chapman replied that Dr. Pepper had a bottler in Kansas City who was a friend of his and that he would have nothing to do with the matter unless Rubenstein was

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willing to sell. Smith replied that he thought Rubenstein could be bought out and that the franchise in any event was going to be available to someone. A short time later Chapman and Daniel were asked by Mr. Smith to visit the Dr. Pepper plant at Dallas which they did and there met for the first time some of its officers. There was merely a general discussion and no agreement of any kind. Chapman was told that any negotiations should be with plaintiff. Negotiations then ensued in Kansas City between Chapman and Rubenstein with some participation by Smith and these lasted over a period of some weeks. These negotiations followed the visit of March 8, 1952, by a Mr. Dosser, a Vice President of Dr. Pepper Company, to plaintiff at which time plaintiff says he was told that his franchise was terminated and also followed notification to Chapman by Dosser that plaintiff was ready to deal with him on a sale. During these negotiations plaintiff was repeatedly told by Chapman that he had no intention of taking over the franchise and business unless plaintiff was entirely willing to sell and that it was all up to him. In much of these negotiations plaintiff was represented by counsel who not only talked with Chapman but with certain of the Dr. Pepper officials and who insisted at various times on getting more money than was proposed and in fact both plaintiff and his counsel so insisted. Plaintiff asked Chapman if he objected if plaintiff tried to get more money out of the Dr. Pepper Company and Chapman said he did not. Later plaintiff presented a typed proposal to be effective as per their previous oral agreement in case his franchise was cancelled. This Chapman signed but thereafter plaintiff continued to insist on more...

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