Banner Creamery Co. v. Judy

• Decision Date: 08 March 1932
• Docket Number: No. 21918.,21918.
• Citation: 47 S.W.2d 129
• Parties: BANNER CREAMERY CO. v. JUDY.
• Court: Missouri Court of Appeals

47 S.W.2d 129

BANNER CREAMERY CO. v. JUDY.

No. 21918.

St. Louis Court of Appeals. Missouri.

March 8, 1932.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be officially published."

Suit by the Banner Creamery Company against R. M. Judy. From the judgment in favor of plaintiff, defendant appeals.

Affirmed.

A. J. Haverstick, of St. Louis, for appellant.

Stout & Spencer, of St. Louis, for respondent.

BENNICK, C.

This is a suit for an injunction. The judgment in the lower court was for plaintiff, awarding it the relief prayed for, and defendant has duly appealed.

Plaintiff, Banner Creamery Company, is a concern engaged in the manufacture and sale of ice cream and other frozen products in the city of St. Louis and its immediate vicinity. Defendant, R. M. Judy, is a merchant whose place of business is located at 6814 Clayton avenue, in the city of St. Louis.

The present controversy arises out of defendant's alleged breach of a contract entered into between him and plaintiff on February 25, 1930, relative to the exclusive purchase and sale by defendant of plaintiff's products. Plaintiff is referred to as the "Company," and defendant as the "Customer," in the contract in question, the material portion of which is as follows:

"The Company agrees to loan and to install, at its own expense for use by the Customer, at the above address, its mechanically refrigerated equipment for preserving ice cream, and agrees to sell to the Customer ice cream and other frozen products of this Company for a period of three years, commencing on the date of this contract and terminating three years therefrom, to the extent of the Customer's requirements, and at the Company's established wholesale prices as adopted by the Company from time to time.

"In Consideration Thereof the Customer agrees to buy exclusively from this Company all ice cream and frozen products, bought, sold, or dealt in by the Customer for or during the said term of three years, and the Customer agrees during said three years not to advertise, display, deal in, buy, or sell directly or indirectly in the City of St. Louis, any frozen products of the kind made by the Company, or any ice cream except the ice cream and frozen products sold to the Customer by this Company.

"The Customer agrees not to use the equipment so loaned for any other purpose than storing the Company's products and ice cream, and agrees to pay for all products and ice cream purchased from the Company promptly upon demand, and agrees to pay the cost of electric current and water used by said equipment, and also to keep said equipment, at all times in a sanitary condition.

"The Company will make all necessary repairs to said equipment unless occasioned by the fault or negligence of the Customer, in which event the Customer agrees to pay the Company for such repairs.

"It is agreed that the title to said equipment is in and shall remain in the Company. Should it desire to substitute other equipment, or should the Customer fail to keep any agreement as herein provided, the Company may, if it so elects, remove or take away said equipment, and for such purpose it shall be lawful for the Company to enter the premises of the Customer and remove or take away said equipment, or any other equipment substituted therefor.

"If the Customer is desirous, for any reason whatever, of terminating this contract, he has the right to do so at any time after two years from date of this contract, by giving written notice to the Company that it is to remove said equipment from the premises of the Customer, within thirty (30) days from date of notice, and by accompanying the notice with a payment of Sixty ($60.00) Dollars wherewith to reimburse the Company for the expense of installing and removing said equipment."

The facts of the case, and the theory upon which plaintiff bases its right to injunctive relief, are to be gathered from the language of the petition which plaintiff caused to be filed in the circuit court of the city of St. Louis on November 26, 1930. After reciting the circumstances inducing and attending the execution of the contract between the parties, and after referring generally to its terms and provisions, the petition concludes as follows:

"Plaintiff further states that defendant accepted and used the mechanical refrigerating equipment, which was installed by the plaintiff in the defendant's place of business at 6814 Clayton avenue, St. Louis, Missouri, and that the defendant on and from the date of said contract has bought from the plaintiff, and the plaintiff has sold to the defendant, ice cream and other frozen products manufactured by the plaintiff as provided in said contract; and that the plaintiff has on its part well and faithfully done and performed every matter, act, or thing required of it to be done under the terms of said agreement, and has always been, and is now, and so tenders itself, able and ready and willing to sell and supply the defendant to the extent of defendant's requirements, ice cream and other frozen products manufactured by the plaintiff at the plaintiff's wholesale prices as adopted by it from time to time, as provided in said contract; that the defendant, without just legal cause, has lately refused to buy any ice cream or other frozen products such as are described in the said contract, from the plaintiff.

"That under the terms of the said contract, the defendant agreed to deal exclusively in ice cream and other frozen products of the plaintiff, and that the defendant, notwithstanding said agreement, without legal justification, has done and is doing, and declares his intention of continuing to follow and do, acts hereinafter specifically enumerated and which he agreed and covenanted not to do, and refuses to perform the acts which he agreed to do in said contract, and in the following particulars, to wit:

"That contrary to said contract, and in violation of the terms thereof, the defendant refuses to buy the ice cream or other frozen products made by the plaintiff, and the defendant lately has been buying, selling, and dealing in ice cream in his said place of business made by a concern known as Ever Pure Ice Cream Company, a competitor of the plaintiff; that plaintiff's signs advertising plaintiff's products are still upon the outside and inside of defendant's said place of business, and that customers buying the ice cream and other frozen products of the said Ever Pure Ice Cream Company, sold by the defendant in his place of business, believe that they are buying and intend to buy the products of this plaintiff in accordance with the signs and other advertising displayed about the defendant's place of business.

"Plaintiff further states that the defendant caused and permitted the said Ever Pure Ice Cream Company to disconnect the plaintiff's refrigerating equipment without the permission of the plaintiff, and caused the said refrigerating equipment to be delivered at plaintiff's plant, all without plaintiff's permission and consent, and to the damage of said equipment; that plaintiff stands ready and is willing and is able, and hereby tenders, to return its said equipment and install the same in the defendant's place of business.

"Plaintiff states that the said continuing acts of the defendant in violation of the agreement, and defendant's expressed intention to persist therein, will inevitably result in the loss of the sale to the extent of defendant's future requirements in his said store of ice cream and other frozen products, such as the plaintiff manufactures, which said damage as a result of the loss of such sales in the future cannot be ascertained and liquidated, the amount of the defendant's future requirements while substantial, being uncertain, and will also result in substantial loss of good will and prestige built up through plaintiff's more than twenty years of effort, fair dealing, and advertising; that the plaintiff's loss, injury, and damage done it by reason of the defendant's violation in the present and future of defendant's contract, both...