Caracci v. Brother Internat'l Sewing Machine Corp. of La.

• Decision Date: 09 October 1963
• Docket Number: Civ. A. No. 11896.
• Citation: 222 F. Supp. 769
• Parties: Vic CARACCI v. BROTHER INTERNATIONAL SEWING MACHINE CORP. OF LOUISIANA.
• Court: U.S. District Court — Eastern District of Louisiana

222 F. Supp. 769

Vic CARACCI v. BROTHER INTERNATIONAL SEWING MACHINE CORP. OF LOUISIANA.

Civ. A. No. 11896.

United States District Court E. D. Louisiana.

October 9, 1963.

David A. Harris, Jackson, Miss., and Steven R. Plotkin, New Orleans, La., for plaintiff.

Lucien M. Gex, Jr., New Orleans, La., for defendant.

FRANK B. ELLIS, District Judge.

This action arises out of the alleged breach of a contract entered into between the parties on August 26, 1960, which was a contract of dealership and distributorship.

The contract made the plaintiff the exclusive dealer and distributor of the defendant's sewing machines in Jackson, Miss., and within a fifty-mile radius of Jackson city limits. They allege that the only exception was the Atlas Sewing Center, Inc., of Jackson, Miss., which may sell as dealer only.

By the terms of the contract, as alleged by Plaintiff, the defendant was obliged not to sell the machines to any other distributor in the fifty-mile radius of Jackson's city limits.

Defendant bound himself to establish the Brother Sewing Center in Jackson for the purpose of selling, servicing and distributing the machines. He alleges that he did this.

Plaintiff alleges breach on the part of the defendant in that the defendant sold machines to W. T. Grant & Co., B. F. Goodrich & Co., and numerous Western Auto Stores located in Jackson and other stores located within the 50-mile radius of the city limits. Plaintiff alleges that he can show that over 200 machines have been sold in violation of the contract.

Plaintiff alleges that he was obligated to sell at least 240 machines per calendar year and that he had sold 223. This inability to fulfill the obligation was caused by this breach of the contract. Defendant could terminate the contract if plaintiff did not sell the requisite 240 machines per calendar year by giving 60 days' notice.

Plaintiff alleges that the defendant cancelled the contract, but not on 60 days' notice.

Plaintiff seeks damages in the amount of $20,000.00 and a mandatory injunction of specific performance against the defendant so that defendant will honor the exclusive franchise and plaintiff may have his damages in lost profits.

The first defense is failure to state a claim upon which relief can be granted.

The second defense admits the existence of a contract, but denies that the contract, as alleged by plaintiff, is the true agreement between the parties, or that it is the entire agreement between them. They allege plaintiff's obligation to sell 240 machines per year and his failure to do so.

The third defense is that when the contract was signed it was understood that all national chain stores would be excluded and words to that effect were entered on plaintiff's copy of the contract.

The fourth defense is that during the contract defendant did not sell machines to any other concern except the Atlas Sewing Machine Company and to the plaintiff.

The fifth defense is that their agent was without authority to enter into such a contract that sought to include chain stores.

The sixth and final defense is that the contract, if the agent had such authority, was a Louisiana contract and null and void because it is subject to a potestative condition.

This matter proceeded to trial without a jury and all pertinent issues were thoroughly briefed by both plaintiff and defendant. Defendant urged in its brief that there was no evidence of operating cost or overhead expense and that the plaintiff, therefore, had failed to prove his net loss, if any, as compensatory damages with the degree of certainty which the law requires.

Thus, made acutely aware of the validity of defendant's position the plaintiff urged by way of a petition the reopening of this case in order to produce additional evidence. Over the opposition of the defendant this court decided in the exercise of its sound discretion to reopen the case for the limited purpose of showing plaintiff's costs of operation in order that a net profit figure might be determined as the basis for the award of damages.

The trial court may properly look with more favor upon a motion to reopen made after submission, but before any indication by it as to its decision, Bowles v. Six States Coal Corporation, D.C., 64 F.Supp. 651, than when the motion comes after a decision has been rendered although findings of fact and conclusions of law have not been formally made and judgment entered. Rue v. Feuz Construction Company, D.C., 103 F.Supp. 499. This is because the lower court has the feel for the case that an appellate court can seldom have and the trial court's ruling is subject to reversal only in a rare case where abuse is clearly shown, Walz v. Fidelity-Phoenix Fire Insurance Company, 6 Cir., 10 F.2d 22, Cert. Den. 271 U.S. 665, 46 S.Ct. 481, 70 L.Ed. 1140.

Even though there is no express statutory provision of substantive law specifically allowing the reopening of a trial, the court finds that such has become a rule of law supplied by the jurisprudence. It appears to be a cannibalization of those qualities found in Rules 59 and 60, Federal Rules of Civil Procedure, New Trials and Relief from Judgment or Order respectively, geared by the philosophy of Rule 1, that is, the "just, speedy, and inexpensive determination of every action."

In the case of Schick Dryshaver v. General Shaver Corp., D.C., 26 F.Supp. 190, it was held that the reopening of that case while under advisement did not constitute a motion for a new trial under Rule 59. The purpose of such a move is to seek the right to offer additional evidence before the Court has reached a final decision thereon, so that the Court may have all of the facts upon which it can render full justice on the merits of plaintiff's cause of action.

Where the additional evidence is presently available, the trial court could and did in the interest of fairness and justice, permit the case to be reopened after both sides had rested and submitted the case for decision.

Alaska United Gold Min. Co. v. Keating, 116 F. 561 (9th Cir., 1902).

Triumph Hosiery Mills, Inc. v. Triumph Intern. Corp., 191 F.Supp. 937 (D.C.N.Y.1961).

There were two contracts introduced into evidence, one was plaintiff's duplicate original (p. 14) and the other defendant's duplicate original (p. 15). These contracts were identical in every respect with the exception that defendant's copy contained words to the effect that all national chain stores were excluded from this exclusive distributorship agreement. This court at the close of the trial announced that the court was of the opinion that the defendant's copy was the valid and binding agreement between the parties.

Mr. Emanuel Harris, who was the defendant's general manager at the time of the confection of the contract and who signed the contract on behalf of the defendant, testified that the words excluding the national chain stores were inserted at the time the contract was signed. He did not know why the words were not included in the plaintiff's copy, but testified that it was definitely understood by the plaintiff that the national chain stores were to be excluded. He further testified that it would have been ridiculous for him to sign a contract which would have cut out a large national chain store, such as Western Auto that purchased thousands of machines over the nation, in order to give plaintiff an exclusive distributorship whereby he was obligated to purchase only 20 machines per month. Further corroborating his testimony, Harris testified that plaintiff was well aware at the time of signing of the contract that defendant was selling machines to Western Auto. On numerous occasions plaintiff saw Wizard machines (which was the label used by Western Auto) in defendant's office in New Orleans, and knew that some of these machines were destined for shipment to stores in Jackson, Mississippi.

Mr. Fred Miller, defendant's general manager, who dealt with plaintiff during the contractual period, testified that plaintiff was at all times aware that Brother machines were being sold by Western Auto Stores in Jackson. He testified that plaintiff had seen the machines in defendant's office; that on one occasion plaintiff even asked him "how Western Auto was doing with their...