Barbier v. Barry
| Decision Date | 17 March 1961 |
| Docket Number | No. 15744,15744 |
| Citation | 345 S.W.2d 557 |
| Parties | Andre BARBIER, Appellant, v. John BARRY, Appellee. |
| Court | Texas Court of Appeals |
Currie, Kohen & Freeman, Dallas, for appellant.
Leake, Henry, Golden, Burrow & Potts and Hartman Hotz, Dallas, for appellee.
Appellee John Barry, assignee of Andre Brullard, filed this suit against Andre Barbier, H. Charat (also known as Hanoh Charatponotski) and Sola Catalytic Company, a corporation. On a previous day we dismissed the appeal for want to jurisdiction because the judgment shown in the transcript did not make any disposition of the case as to one of the defendants, Sola Catalytic Company, a corporation.
The parties have joined in a motion for rehearing, and with our permission, have filed a supplemental transcript. The latter document reveals that the trial court upon joint motion of the parties has entered a judgment nunc pro tunc which disposes of all the parties to the suit. The judgment recites that the original judgment as uttered by the court disposed of all the parties, but that in the written judgment signed by the court, the take-nothing part of the court's decision with reference to the Sola Catalytic Company, a corporation, was inadvertently omitted.
The motion for rehearing is sustained. Our order of dismissal is set aside. We shall now proceed to consider the appeal on its merits. Sessions v. Whitcomb, Tex.Civ.App., 329 S.W.2d 470; Heavy Haulers, Inc. v. Nicholson, Tex.Civ.App., 277 S.W.2d 250.
In his amended petition appellee Barry sought (1) damages against all defendants for alleged breach and conspiracy to breach a licensing contract between Barbier and Brullard, and (2) payment of a commission alleged to have been earned by Brullard for procuring another licensing contract for Barbier with Charat.
The case was tried to the court without a jury. Judgment was rendered in favor of appellee Barry, assignee, for (1) $10,000 against Barbier and Charat on the count alleging conspiracy and breach of contract, and (2) $3,650 against Barbier alone on the count alleging a commission earned by Brullard. Judgment was entered in favor of Sola Catalytic Company, a corporation, that Barry take nothing. Only Barbier has appealed.
Appellant Barbier, a Frenchman residing part of the time in Mexico and part of the time in the United States, was in 1949 the owner of a process for the catalytic treatment of waters, which process and accompanying products were gegistered and marketed under the name of Sola and Solavite cells.
Either in December 1949 or in February 1950, appellant Barbier and Andre Brullard, also a Frenchman and also a resident of Mexico, entered into a contract while both of them were in San Francisco, california, whereby Barbier granted to Brullard an exclusive license for twenty years to 'exploit' Barbier's processes and patents in the States of Washington, California, Oregon, Idaho, Nevada and Arizona.
The contract itself recites that it was executed in Mexico City on December 9, 1949, but the parties testified that it was not actually consummated until February 1950 in San Francisco, California.
Brullard was wholly unsuccessful in his efforts to sell the sola products. He was unable to obtain any orders at all. Finally Barbier cancelled his contract with Brullard. Some time later he entered into a contract with Charat, a native of Russia, but a citizen of France, whereby Charat took over the six states named in Brullard's contract. (Charat had already entered into a licensing contract with Barbier covering the other forty-two states). Brullard and his assignee claim that Barbier's cancellation, or attempt to cancel was wrongful and was brought about through a conspiracy between Barbier, Charat and Sola Catalytic Company, a Texas Corporation organized by Charat to market the sola products.
Neither Barbier, or Brullard speak English. The contracts and letters involved in the controversy are written in the French language. Despite the efforts of three interpreters, the language barrier presented difficulties in the way of exact translation and accurate interpretation.
In his first point on appeal Barbier asserts in substance that the court erred in rendering judgment against him since none of the facts, as distinguished from legal conclusions, found against him constituted a violation of any obligation he owed Brullard under the contract sued on.
The trial court made findings of fact and conclusions of law which include the following: (1) Brullard and Barbier entered into a written contract granting Brullard exclusive rights for twenty years to market sola products in the six states heretofore named, (2) the contract bound Barbier to furnish Brullard solavite cells until the demand for said cells within the territory granted became sufficient to install a factory in California to manufacture the cells, (3) the contract provided for the payment of specified royalties to Barbier, (4) Barbier and Charat entered in a conspiracy to prevent Brullard from receiving the benefits of the exclusive licensing agreement for the six states named, (5) prior to July 1, 1951 Brullard fully performed, or tendered full performance of the contract, (6) Barbier in violation of his contract with Brullard entered into a written contract with Charat covering the six states named in Brullard's contract, (7) Charat and his assignee, Sola Catalytic Company, have sold large quantities of sola products in the six states reaping large profits therefrom, which profits Brullard would have made except for the conspiracy to breach Brullard's contract, (8) said profits amounted to $100,000 for the years 1951 and 1952, (9) Brullard will be damaged $100,000 per year for the eighteen years remaining of said twenty year contract period, (10) Charat has paid Barbier $12,000 per year as royalties without consent of Brullard, (11) at the time of the attempted cancellation by Barbier of Brullard's contract for alleged non-payment of royalties, Barbier was indebted to Brullard in a greater amount than such royalty payments, (12) appellee Barry was entitled to recover $10,000 as result of the wrongful conduct of Barbier and Charat.
The theory on which the damages were fixed at $10,000 was explainted by the court in one of the conclusions of law as follows:
'* * * though there is not actual proof, based upon the cost of operation, sales executive ability, and other items not subject to specific proof, the Court feels that this case comes within the classification of cases where it is admitted and known that substantial damages resulted but are incapable of exact proof, the Court therefore applies the Rule that in such a situation substantial nominal damages may be awarded, and that is the theory upon which the $10,000 damages is fixed by the Court, as the Court feels is a substantial nominal amount of damages.'
We have concluded that appellant Barbier is correct in his first point to the effect that the facts as distinguished from legal conclusions found against him do not constitute a violation of any obligation Barbier owed Brullard under the terms of the written contract sued on. An adequate discussion of the question requires us to set out material evidence in some detail.
We quote excerpts from the written contract between Barbier and Brullard:
'As to the manufacture of the cells, they shall be manufactured by Mr. Andre Barbier in the U. S., if the number required by the volume of Mr. Andre Brullard's sales is sufficient to justify the establishment of a manufacturing shop in California. Until such time, the cells shall be purchased either from the Societe Francaise de Labratories Solavite (English rendering of name: French Solavite Laboratories Co.), 90 Laugier Street, Paris, or from the Societe Solvative de Mexico (English rendering: Solavite Company of Mexico), 95 Sullivan Street, Mexico, D. F., at the wholesale export price, in accordance with the respective tariffs of each of these two companies. * * *. (Emphasis ours.)
'8. Beginning August 1, 1950, and throughout the duration of the present contract of exclusive license to exploit, Mr. Andre Brullard, or the American frim to which he may cede the said license, * * * shall at the end of each quarter pay Mr. Andre Barbier royalties fixed at 5 percent of the gross, rent or service of the units and cells, until the expiration of the contract of exclusive license to exploit. The minimum royalty to be paid is fixed for the first 6 months, that is, until February 1, 1951, at $600.00, that is, $300.00 at the end of each quarter. Beginning with this latter date, the minimum royalty to be paid annually is fixed at $1,800, and payable at the end of each quarter, until the expiration of the contract of exclusive license to exploit. Should the minimum royalty, indicated above not be paid to Mr. Andre Barbier at the end of each quarter, the licensee shall have two choices: a) Execute immediately the payment of the minimum royalties of the quarter just finished. b) Renounce the contract of exclusive license to exploit, which would be cancelled in full right by Mr. Andre Barbier, after three month's advance notice given by registered letter unavailing all without indemnity or recourse.'
Under the terms of the contract Brullard was not given the right to manufacture the cells himself, and he does not contend that he was given that right. The terms of the contract seem to us to be plain and unambiguous with reference to the supply of cells. Brullard was to obtain them from factories in France of Mexico, with the exception of a stated number for demonstration purposes. Barbier was not to furnish them until Brullard's sales were sufficient to justify the establishment of a factory in California.
Brullard himself recognized that such were the terms of his contract. We quote from his testimony:
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