Automatic Vending Co. v. Wisdom

CourtCalifornia Court of Appeals
Writing for the CourtWARNE; VAN DYKE, P. J., and SCHOTTKY
PartiesAUTOMATIC VENDING COMPANY, a corporation, Plaintiff and Respondent, v. Bessie Jane WISDOM, individually and doing business as Last Chance Cafe, Defendant and Appellant. Civ. 9913.
Decision Date30 June 1960

Page 31

6 Cal.Rptr. 31
182 Cal.App.2d 354
AUTOMATIC VENDING COMPANY, a corporation, Plaintiff and Respondent,
v.
Bessie Jane WISDOM, individually and doing business as Last Chance Cafe, Defendant and Appellant.
Civ. 9913.
District Court of Appeal, Third District, California.
June 30, 1960.

Page 32

[182 Cal.App.2d 355] Clifford R. Lewis, Sacramento, for appellant.

Devlin, Diepenbrock & Wulff, Sacramento, for respondent.

WARNE, Justice pro tem.

Defendant appeals from a judgment for plaintiff in an action for damages for breach of contract.

Respondent is engaged in the business of selling and dispensing cigarettes by means of automatic vending machines. Defendant leases and operates a cafe. On February 27, 1958, respondent and appellant entered into a written contract whereby appellant granted to respondent a three-year concession for the sale of cigarettes on her premises by means of cigarette vending machines. The provisions of the contract insofar as they are pertinent to the issues presented on this appeal are as follows:

'1) In consideration of the payment of any advance commission[182 Cal.App.2d 356] hereunder, or the payment of the commissions hereinafter set forth, I/we hereby grant to you, Automatic Vending Company, a corporation, for a period of three (3) years from the date shown hereon, an exclusive concession for the sale of cigarettes in and about my/our place of business located at 2816 W. Capitol Av. West Sacramento, California, known as Bessie Jane Wisdom, DBA Last Chance Cafe.

* * *

* * *

'6) You are to pay me/us the following rates of commission for the said exclusive concessions:

On Monthly sales 1000 packages or over .. 8% - on all sales

On Monthly sales 700 to 1000 packages .. 7%

On Monthly sales 400 to 700 packages ... 5%

On Monthly sales 100 to 400 packages ... 4%

'7) I/we agree that you may change the above cigarette commission rates upon written notice to me/us and I/we further agree to accept your count as to the amount of cigarettes sold on my/our premises.

'8) No commissions shall be paid hereunder by you to me/us until all of the advance commissions, if any, heretofore paid by you have been repaid to you in full, and thereafter said commission shall be paid to me/us monthly. I/we shall not assign this contract or any part thereof, without your written consent, during the term hereof.'

Concurrently with the execution of this agreement respondent paid appellant $200 as an advance commission. In January of 1959, appellant demanded that respondent pay to her larger commissions than those provided for in the contract, which respondent refused to do. On January 28, 1959, appellant repudiated the contract and demanded that respondent remove its cigarette vending machine from her premises. Respondent did so and on March 8, 1959, filed this suit to recover damages for loss of profits which it would have earned during the remaining 25 months' life of the contract.

The undisputed testimony of one John Wojcik, vice president of the respondent corporation, shows that the total sales from the cigarette vending machine on appellant's premises during the 12 months immediately prior to appellant's breach of the contract averaged 1,389 packs monthly; that its average gross profit per package of cigarettes was $.076567; that its net profit is determined by deducting from its gross profit a commission paid to appellant of $.02 per package of cigarettes sold and sales tax paid in the amount of $.01 per package sold which resulted in a net profit to appellant of $.04657 [182...

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32 practice notes
  • Perdue v. Crocker National Bank, S.F. 24591
    • United States
    • United States State Supreme Court (California)
    • July 18, 1985
    ...shall be left to the will and discretion of one of the parties is not enforceable." (Automatic Vending Co. v. Wisdom (1960) 182 Cal.App.2d 354, 357, 6 Cal.Rptr. 31.) That rule, however, applies only if the total discretion granted one party renders the contract lacking in consideration......
  • Carmax Auto Superstores Cal. LLC v. Hernandez, CASE NO. CV 14–08743 MMM JEMx
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • April 30, 2015
    ...James G. Freeman & Associates, Inc. v. Tanner, 56 Cal.App.3d 1, 8, 10, 128 Cal.Rptr. 109 (1976) ; Automatic Vending Co. v. Wisdom, 182 Cal.App.2d 354, 357–58, 6 Cal.Rptr. 31 (1960) ).91 MTC Opposition at 11–12.92 See 2001 DRRP at 13.93 See 2011 DRRP at 8.94 MTC Opposition at 12 (“Armend......
  • Okun v. Morton, No. B024082
    • United States
    • California Court of Appeals
    • August 11, 1988
    ...also Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 923, 216 Cal.Rptr. 345, 702 P.2d 503; Automatic Vending Co. v. Wisdom (1960) 182 Cal.App.2d 354, 357, 6 Cal.Rptr. 31.) It was this particular aspect of the good faith requirement which the trial court had in mind when it concluded t......
  • Harris v. TAP Worldwide, LLC, B262504
    • United States
    • California Court of Appeals
    • June 22, 2016
    ...such as the duty to exercise it in good faith and in accordance with fair dealings.”]; Automatic Vending Co. v. Wisdom (1960) 182 Cal.App.2d 354, 357–358, 6 Cal.Rptr. 31 [an agreement where one party fixes a commission amount is not illusory because it is subject to the implied good faith a......
  • Request a trial to view additional results
32 cases
  • Perdue v. Crocker National Bank, S.F. 24591
    • United States
    • United States State Supreme Court (California)
    • July 18, 1985
    ...shall be left to the will and discretion of one of the parties is not enforceable." (Automatic Vending Co. v. Wisdom (1960) 182 Cal.App.2d 354, 357, 6 Cal.Rptr. 31.) That rule, however, applies only if the total discretion granted one party renders the contract lacking in consideration......
  • Carmax Auto Superstores Cal. LLC v. Hernandez, CASE NO. CV 14–08743 MMM JEMx
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • April 30, 2015
    ...James G. Freeman & Associates, Inc. v. Tanner, 56 Cal.App.3d 1, 8, 10, 128 Cal.Rptr. 109 (1976) ; Automatic Vending Co. v. Wisdom, 182 Cal.App.2d 354, 357–58, 6 Cal.Rptr. 31 (1960) ).91 MTC Opposition at 11–12.92 See 2001 DRRP at 13.93 See 2011 DRRP at 8.94 MTC Opposition at 12 (“Armend......
  • Okun v. Morton, No. B024082
    • United States
    • California Court of Appeals
    • August 11, 1988
    ...also Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 923, 216 Cal.Rptr. 345, 702 P.2d 503; Automatic Vending Co. v. Wisdom (1960) 182 Cal.App.2d 354, 357, 6 Cal.Rptr. 31.) It was this particular aspect of the good faith requirement which the trial court had in mind when it concluded t......
  • Harris v. TAP Worldwide, LLC, B262504
    • United States
    • California Court of Appeals
    • June 22, 2016
    ...such as the duty to exercise it in good faith and in accordance with fair dealings.”]; Automatic Vending Co. v. Wisdom (1960) 182 Cal.App.2d 354, 357–358, 6 Cal.Rptr. 31 [an agreement where one party fixes a commission amount is not illusory because it is subject to the implied good faith a......
  • Request a trial to view additional results

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