Bertlee Co. v. Illinois Publ'g & Printing Co.

• Decision Date: 17 November 1943
• Docket Number: Gen. No. 42455.
• Citation: 320 Ill.App. 490,52 N.E.2d 47
• Court: United States Appellate Court of Illinois
• Parties: BERTLEE CO., INC., v. ILLINOIS PUBLISHING & PRINTING CO.

320 Ill.App. 490

52 N.E.2d 47

BERTLEE CO., INC.,

v.ILLINOIS PUBLISHING & PRINTING CO.

Gen. No. 42455.

Appellate Court of Illinois, First District, Third Division.

Nov. 17, 1943.

Appeal from Circuit Court, Cook County; John P Prystalski, Judge.

Action by Bertlee Company, Incorporated, against the Illinois Publishing & Printing Company for breach of contract to furnish news photographs for display in windows of merchants in frames furnished by plaintiff. Defendant's motion for summary judgment was sustained and, from the adverse judgment, plaintiff appeals.

Reversed and remanded with directions. Rothbart & Rosenfield, of Chicago (J. M. Rosenfield, of Chicago, and Ezra Shapiro and Alfred H. Sachs, both of Cleveland, Ohio, of counsel), for appellant.

Kurt J. Salomon, of Chicago (Floyd E. Thompson, of Chicago, of counsel, on petition for rehearing), for appellee.

BURKE, Presiding Justice.

In a complaint at law filed in the Circuit Court of Cook County, Bertlee Company, Inc., a corporation, sought damages against the Illinois Publishing and Printing Company, a corporation, for breach of agreement. The complaint alleged that the defendant was the publisher of the Chicago Herald and Examiner; that in June, 1933 the Bertlee Company and defendant entered into an oral agreement wherein the Bertlee Company agreed as follows: To secure 3,000 merchants in a specified area with whom it would enter into contracts whereunder, for a period of one year, said merchants would display in their store windows and places of business in frames furnished by Bertlee Company, current late news photographs known as “Last Minute Photos”, whereon the name Chicago Herald and Examiner would at all times be displayed without obstruction and would display only photos supplied by defendant. Bertlee Company further agreed to display and cause to be displayed photos supplied by defendant in windows of 3,000 merchants and agreed not to allow promotional matter of any competing newspaper to be exhibited in any of the frames. It was further alleged that defendant agreed to furnish, supply and deliver to not more than 3,000 merchants under contract with Bertlee Company without any charge or cost either to the company or its merchants, its current late news photographs for display in the stands furnished under their respective contracts daily for six days in each week for a period of one year after the respective dates of each agreement entered into between the Bertlee Company and the merchants. Defendant further agreed that during the term of its agreement it would enter into no similar agreements with anyone else. It was further alleged that in August, 1933, plaintiff and defendant entered into an oral agreement identical in consideration, promises, terms and provisions with the agreement hereinbefore stated, but modified in one respect only. The period during which defendant was to furnish and deliver said photos to merchants with whom plaintiff might thereafter contract was thenceforth to be two years from and after the date of the execution of each merchant's contract. At that time, by agreement of the three parties concerned, plaintiff Bertlee Company, Inc., a corporation, succeeded to all the rights, privileges and obligations of Bertlee Company, a corporation. In January, 1934, the oral agreement was further orally modified as follows: (a) The number of merchants was increased to 4,000; and (b) it was agreed that defendant could at any time notify plaintiff to cease making additionalcontracts with new merchants and that plaintiff would cease making additional and new contracts with merchants 30 days subsequent to such notice by defendant, it being clearly agreed that such notice by defendant to cease making additional contracts with new merchants would in no wise modify its agreement to furnish and deliver said photos to all merchants with whom plaintiff had theretofore contracted for the full duration of the complete terms of such contracts. In June, 1934 the oral agreement was further orally modified in one respect: Defendant agreed to furnish said photos to all merchants without limitation as to number with whom plaintiff might contract. The oral agreements and supplements were ratified and confirmed by plaintiff and defendant through correspondence, conversations, printed or written memoranda, copies of such letters, telegrams and other communications being attached to the complaint as Exhibits A to K. Plaintiff further alleged performance on its part, and that on October 1, 1934, at the request of defendant and without consideration to plaintiff, but solely in order to enable defendant to reduce its expenses, plaintiff agreed that defendant might furnish said six “Last Minute Photos” each week to each of said merchants by delivering two of said “Last Minute Photos” three times a week to merchants outside of the City of Chicago, instead of delivering to said merchants outside of the City of Chicago, one of said “Last Minute Photos” on each of six days each week. Plaintiff further alleged that on November 19, 1934, defendant notified it to cease making additional contracts with new merchants for the furnishing and delivering of said “Last Minute Photos” from and after December 20, 1934. Plaintiff charged that on December 20, 1934, and from then on, defendant, contrary to its oral agreement and supplements, and notwithstanding plaintiff's protests, failed and refused to furnish and deliver any “Last Minute Photos” to any and all of the merchants with whom plaintiff was under contract prior to December 20, 1934. Plaintiff asked judgment in the sum of $178,142.27 and demanded a jury trial. Defendant answered the complaint, denying the agreements, alleged that the agreements were oral and could not be performed within one year and therefore were void under the Statute of Frauds, and that it had a right to terminate the agreements on 30 days' notice, which notice was given. The answer denied that plaintiff had fully and completely performed the agreement, and alleged that plaintiff attempted to induce its customers to use photos other than those furnished by defendant. A reply was filed to the answer denying the factual allegations thereof. Thereafter, an amendment to the complaint was filed increasing the ad damnum and alleging an additional element of damage. Defendant then filed a motion to strike the complaint as amended, urging as grounds that the agreement could not be performed within one year and was void under the Statute of Frauds; that the complaint was at variance with the exhibits; that the complaint and exhibits show that the defendant had a right to cancel the agreement on 30 days' notice; and that the agreement was void for want of consideration and want of mutuality of obligation. The motion to strike the complaint as amended was sustained. An amended complaint was filed and a similar motion to strike was sustained. Then a second amended complaint was filed. The latter was identical to the original complaint and amendment, except that it included only Exhibits A, B, C and I. To the second amended complaint defendant filed an answer substantially the same as its answer to the original complaint and plaintiff filed its reply to the answer. Thereupon, defendant filed a motion for summary judgment, to which plaintiff filed an opposing affidavit. Defendant attached the omitted exhibits D, E, F, G and H to its answer and motion for a summary judgment. The court sustained defendant's motion and entered judgment against plaintiff and this appeal followed.

A summary judgment can be granted only where the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The purpose of the summary judgment procedure is not to try an issue of fact but rather to determine whether there is an issue of fact. The method is necessarily inquisitorial. If there is a material issue of fact, it must be submitted to the jury. The right of the moving party to a judgment should be free from doubt. Plaintiff declares that the record affirmatively shows the existence of genuine, controverted issues of fact, precluding the entry of a summary judgment. We accept defendant's statement that it is the law of this State that where there is a discrepancy or contradiction between the allegations in a complaint and the facts as shown in the exhibits attached to and made a part of the complaint, the exhibits will control. Bunker Hill Country Club v. McElhatton, 282 Ill.App. 221, 236. Defendant insists that there was no genuine disputed question of fact for the jury and that the judgment was proper because (1) the contract was unenforceable under Section 1 of the Statute of Frauds since it could not be performed within a year; (2) the contract has not been performed by the plaintiff; and (3) the contract was terminated upon 30 days' notice in accordance with its terms. Plaintiff answers these contentions by asserting that (1) the agreement is not wholly oral but is spelled out in its entirety by the correspondence appearing in the record; (2) it is not established by the record that the agreement, even though it had been completely oral, could not be performed within the space of one year; (3) that the agreement has been completely and fully performed by the plaintiff; and (4) that the right of the defendant to terminate the contract is an issue of fact which plaintiff has a right to have submitted to a jury.

We have carefully read and analyzed the second amended complaint, the answer, the reply, the motion for summary judgment, the exhibits attached to the second amended complaint, and to the motion for summary judgment and the affidavit opposing the motion. Exhibit A is a letter dated June 23, 1933, addressed to the Bertlee Company by the Chicago Herald and Examiner, signed by Mr. Homer Guck, publisher, reading: “We agree to deliver, without charge, within the area...