Busam Motor Sales v. Ford Motor Co., 11673.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: ALLEN, MARTIN and MILLER, Circuit
• Citation: 203 F.2d 469
• Parties: BUSAM MOTOR SALES v. FORD MOTOR CO.
• Docket Number: No. 11673.,11673.
• Decision Date: 14 April 1953

203 F.2d 469 (1953)

BUSAM MOTOR SALES
v.
FORD MOTOR CO.

No. 11673.

United States Court of Appeals Sixth Circuit.

April 14, 1953.

203 F.2d 470

Robert N. Gorman, Cincinnati, Ohio, Gorman, Silversteen & Davis and Robert N. Gorman, Cincinnati, Ohio, Larz R. Hammel, Cincinnati, Ohio, on the brief, for appellant.

J. Mack Swigert, Cincinnati, Ohio, Taft, Stettinius & Hollister, J. Mack Swigert and Robert Taft, Jr., Cincinnati, Ohio, on the brief, William T. Gossett and Duane D. Freese, Dearborn, Mich., of counsel, for appellee.

Before ALLEN, MARTIN and MILLER, Circuit Judges.

MILLER, Circuit Judge.

This is an appeal from a judgment based on a verdict of a jury in favor of the defendant-appellee, Ford Motor Co., directed by the trial judge at the conclusion of the opening statement of the plaintiff-appellant.

Appellant, who was an authorized distributor of appellee's motor vehicles under appellee's standard form of contract, instituted this action to recover damages alleged to have resulted from the illegal termination of the contract by the appellee. In a former trial, appellant obtained a verdict in the amount of $87,000, which the district judge set aside by granting a motion for a new trial, overruling at the same time a motion for judgment notwithstanding the verdict. Busam Motor Sales, Inc., v. Ford Motor Co., D. C., 85 F.Supp. 790. The Ford Motor Company appealed from that portion of the order which overruled its motion for judgment notwithstanding the verdict. This Court dismissed the appeal on the ground that it was not an appealable order. Ford Motor Co. v. Busam Motor Sales, Inc., 6 Cir., 185 F.2d 531. The facts in detail can be obtained from those two opinions.

The original complaint alleges that by contract of March 4, 1946, the appellant was designated by the appellee as an authorized distributor of its motor vehicles; that, according to its terms, the contract could be terminated at any time at the will of either party by written notice to that effect; that on July 7, 1947, the appellant was notified by registered mail of the appellee's intention to terminate the agreement effective September 5, 1947, which purported termination was not made in good faith on the part of the appellee, but solely to deprive the appellant of profits which it would have received upon the filling of 316 unfilled orders for appellee's motor vehicles; that appellee, in defraud of appellant's rights, refused to deliver any automobiles to the appellant to enable it to fill the orders; "and that by reason of the fraud, bad faith and refusal of defendant to make said delivery, plaintiff company has been damaged" in the amount of $105,768. Following the dismissal of the appeal by this Court and the remand of the case to the District Court for a second trial, the appellant, on March 17, 1952, moved in the District Court to amend its complaint, the proposed amendment reading as follows: "Plaintiff says that said purported termination was not in good faith on the part of the defendant company, and that the defendant company at the time it entered into the contract intended to terminate said contract, and did not execute said agreement of March 4, 1946, in good faith." The trial judge overruled the motion and the case was set for trial on March 31, 1952.

Appellant's counsel in his opening statement to the jury on the second trial reviewed the evidence which appellant would offer in support of its claim, and stated to the jury in closing as follows:

"So, Members of the Jury, that is the evidence we expect to prove the contract was cancelled. As I said, notice was given on July 7 and the cancellation took place on September 5th. It is our claim that there was bad faith on

203 F.2d 471

the part of the Ford Motor Company from the very inception of this contract and that this bad faith resulted in the cancellation, not terminating in good faith, not entered into in good faith, not performed in good faith, and we contend the Ford Motor Company is liable and responsible for the damages to the Busam Motor Sales, Incorporated."

Appellee moved for the entry of judgment in its favor on the basis of the pleadings and the opening statement, and also for summary judgment in its favor. The trial judge sustained the motions by directing a verdict for the appellee, which was duly returned by the jury, followed by judgment for the appellee. Appellant filed a motion for a new trial, which the trial judge overruled, and this appeal followed.

The contract contained the following provision, the construction and effect of which presents the issue involved in this case. "This agreement may be terminated at any time at the will of either party by written notice to the other party given either by registered mail or by personal delivery, and such termination shall also operate to cancel all orders for Company products theretofore received by Company and not delivered."...