Bowers v. Etherton
| Decision Date | 07 January 1949 |
| Docket Number | 40631 |
| Parties | Walter B. Bowers, Appellant, v. Meryl Etherton, doing business under the fictitious name of Sodrin Manufacturing Company, Respondent |
| Court | Missouri Supreme Court |
From the Circuit Court of Jackson County, Civil Appeal, Judge Thomas J. Seehorn
Affirmed
Walter B. Bowers instituted this action against Meryl Etherton. We designate the parties as styled in the caption in the trial court. The causes of action submitted were for slander and for libel, pleaded in two counts, each praying for $15,000 actual and for $10,000 punitive damages. Defendant answered pleading, among other things and sufficient here, the truth in justification and also set up as a counterclaim a breach of contract on the part of plaintiff, seeking $20,000 damages therefore. These issues were submitted to the jury and the verdict was in favor of the defendant and against plaintiff on plaintiff's causes of action and in favor of plaintiff and against defendant on defendant's counterclaim. The respective motions for new trial were overruled. Plaintiff appealed. He questions the admissibility of certain evidence and the propriety of instructions given on behalf of defendant. We outline the substantial facts material here.
Defendant manufactured and merchandised certain automotive items under the trade name of Sodrin Manufacturing Company. The products here involved are known in the record as "master cleaner," "komide" and the "Sodrin" gun, a reverse flush gun, and are of use in cleaning grease cake, rust, and scale from the colling system of automobiles. Defendant had perfected the Sodrin gun and had an application pending for a patent thereon. The master cleaner was used to disintegrate the scale and grease into small particles for removal with the aid of the Sodrin reverse flush gun. The komide was used to keep the grease, rust, and scale from again clogging the cooling system.
By a contract dated January 2, 1933, plaintiff agreed to represent the defendant as General Sales Manager in the United States and foreign countries for a commission on net sales and to devote his full time and efforts to the sale and distribution of defendant's products exclusively. Later plaintiff desired to establish his own business and on February 1 1945, notified defendant he was establishing the Walter B Bowers Company, and tendered his resignation as General Sales Manager for defendant, effective March 1, 1945. On March 1, 1945, another contract was entered into between plaintiff and defendant, using their respective trade names, which cancelled all previous contracts between said parties. Plaintiff agreed to represent defendant "in a sales capacity as a manufacturer's representative," in the United States and foreign countries, "on all automotive items manufactured or distributed" by defendant, and agreed "that he will, at no time, during the existence of this contract, represent a competitive line of merchandise." Defendant agreed to pay plaintiff the commission on sales therein set forth and the contract was subject to termination upon sixty days' notice.
The scarcity of materials experienced in World War II stopped the manufacture of reverse flush guns and created an extraordinary demand for them. Plaintiff had traveled extensively and attended conventions with men interested in his line of work and business. In the early part of 1945 after discussion, plaintiff and defendant decided to put the Sodrin gun back on the market as soon as possible. Plaintiff was acquainted with a Mr. Becker of the Aero-Motice Manufacturing Company of Kalamazoo, Michigan, who had the necessary materials and was equipped to manufacture the Sodrin gun. Pattern makers were busy and time was a factor. In the Spring of 1945 arrangements were made in Kansas City for Mr. Becker to manufacture 1000 Sodrin guns and for defendant to forward his equipment, such as patterns, core boxes, dies, and molds, to Mr. Becker at Kalamazoo to speed up the manufacture of the guns. It was decided to market the "master cleaner," the "Sodrin" gun and "komide" in one package, known as the "Sodrin-3-K-Special," the thought being that the demand for the gun would aid the sale of the other articles.
The first shipment of Sodrin guns was received the last of July, 1945. Being informed that Mr. Becker could not profitably manufacture the guns in lots of 1000 an order was placed for a total of 5000 Sodrin guns, those previously manufactured to constitute a part of the 5000 ordered. In August, 1945, 2301 "3-K-Special" orders were sold; in September, 1145; in October, 225; in November, 128, and in December 10. Complaints began coming in about the Sodrin gun leaking at the water valve. Three-thousand-four-hundred-seventy-five Sodrin guns were received from Mr. Beck and of that number defendant's dealers returned 1179 which had to be repaired. There was testimony that the valves had not been "ground in"; that there were other defects; and that prior to the War less than one-tenth of one percent of the guns had been returned for re-working. Defendant testified that plaintiff returned from the road on October 17, 1945, and stated that Mr. Becker and he, plaintiff, had designed and were manufacturing a gun similar to the Sodrin gun and that he had taken over its sale; that he, defendant, told plaintiff that accounted for the drop in the sales of "3-K-Special" and that plaintiff had breached their contract; that plaintiff said he was not going to pass up a chance to make $100,000 and defendant could cancel the contract; that the next morning he told plaintiff he was cancelling their contract and on October 22, 1945, he advised plaintiff in writing that the contract was cancelled. Plaintiff testified that sometime after placing the order for the 5000 Sodrin guns he talked to defendant over long distance telephone; that defendant wanted to cancel the order for the balance of the guns; that plaintiff told defendant Mr. Becker's company contemplated making a similar gun and plaintiff was going to take over its sale; that defendant told him it was all right for him to do so; and that thereafter he sold the Aero-Motice gun, known as the "Zoo" gun.
There was evidence that dealers desired to purchase a reverse flush gun without buying the "3-K-Special" package; that as early as August, 1945, plaintiff was informing the trade that he also represented the Aero-Motive Manufacturing Company, the company which was manufacturing the Sodrin gun, and that it was coming out with an improved reverse flush gun, the Zoo gun, which could be purchased separately; that the Zoo gun had a better or improved valve, a valve which would not leak; and that samples of the Zoo gun were received about the middle of September, 1945. There was testimony that the castings for the "Sodrin" and the "Zoo" guns were made from the same core box.
Defendant denied that he had any knowledge plaintiff was selling a "competitive gun" prior to said conversation of October 17, insisting he was not so dumb as to let one of his men wreck his business selling a competitive gun. He immediately cancelled the unfilled orders for the Sodrin gun and demanded the return of his patterns and models. There were not returned immediately, but reached him sometime in December. Following defendant's letter to plaintiff of October 22, 1945, several letters passed between the parties and defendant addressed a letter to plaintiff on March 7, 1946, containing the alleged defamatory words, to wit:
"However, if you are determined to sue, it might be an opportunity for me to find out how a jury would feel about your action of going into competition with me and using my patters, models and product, when acting as my sales agent, and of manufacturing my product defectively so it would leak and then telling the trade it had better buy your product because mind would leak."
We consider plaintiff's points 1, 2, 5, and 6 together. He says the court erred in admitting, over objection, certain testimony tending to establish defendant's damages under his counterclaim; i. e., testimony comparing his actual net profit for the year 1945 in view of plaintiff's breach of the contract and the sale of the Zoo guns as against net profits based upon his volume of business in August for the "3-K-Special" package if continued throughout the remainder of 1945, and testimony establishing the fixed costs of the "3-K-Special" package as against its sales price and the cancellation by customers of orders for the "3-K-Special" package. He also claims error in overruling his "motion to dismiss defendant's counterclaim"; in the giving of instruction D, which...
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