Care Display, Inc. v. Didde-Glaser, Inc., DIDDE-GLASE

• Decision Date: 20 January 1979
• Docket Number: INC,DIDDE-GLASE,No. 49191,49191
• Parties: , 25 UCC Rep.Serv. 1254 CARE DISPLAY, INC., Plaintiff-Appellee, v., Defendant-Appellant.
• Court: Kansas Supreme Court

Page 599

589 P.2d 599

225 Kan. 232, 25 UCC Rep.Serv. 1254

CARE DISPLAY, INC., Plaintiff-Appellee, v. DIDDE-GLASER, INC., Defendant-Appellant.

No. 49191.

Supreme Court of Kansas.

Jan. 20, 1979.

Syllabus by the Court

1. Two persons may fully agree upon the terms of a contract, knowing that there are other matters on which they have not agreed and on which they expect further negotiation. Such an expectation does not prevent the agreement already made from being an enforceable contract. (Following Storts v. Eby Construction Co., 217 Kan. 34, Syl. P 2, 535 P.2d 908 (1975).)

2. In order for parties to form a binding contract there must be a meeting of the minds as to the essential terms of the contract.

3. The determination of the existence of a sufficient meeting of the minds to form the basis for a binding contract is one of fact to be determined by the trier of the facts.

4. It is not the function of an appellate court to weigh conflicting evidence, pass on the credibility of witnesses or redetermine questions of fact and our only concern is with evidence which supports the trial court's findings, and not with evidence which might have supported contrary findings.

5. In ruling on a motion for directed verdict pursuant to K.S.A. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for a directed verdict. (Following Simpson v. Davis, 219 Kan. 584, Syl. P 3, 549 P.2d 950 (1976).)

6. In a contract which calls for both the performance of services and the furnishing of goods, as defined in the Uniform Commercial Code (K.S.A. 84-2-105(1)), the test to determine whether the contract is one for the sale of goods within the purview of the statute of frauds (K.S.A. 84-2-201) is whether the predominant factor, the thrust, the purpose, reasonably stated, is the rendition of service, with goods incidentally involved, or is a transaction of sale, with labor incidentally involved. (See Bonebrake v. Cox, 499 F.2d 951 (8th Cir., 1974).)

7. Where evidence is introduced in support of a party's theory of a case, he is entitled to an instruction explaining the issue framed under such theory. The instructions given must be germane to the issues raised by the pleadings, and must be limited to those issues supported by some evidence. (Simms v. Webb, 219 Kan. 675, 549 P.2d 570 (1976).)

8. In an appeal from a jury verdict awarding damages for breach of an oral contract, the record is examined and it is held the trial court did not commit error (1) in overruling defendant's motions for a directed verdict; (2) in failing to give certain requested instructions to the jury; (3) in the giving of certain instructions to the jury over objection of the defendant; and (4) in overruling defendant's motion for change of venue. It is further held there was sufficient evidence to sustain the award of damages and the judgment is affirmed.

Thomas A. Krueger of Krueger & Shaw, Emporia, argued the cause and W. Irving Shaw, Emporia, was with him on the brief for appellant.

David H. Heilman, Council Grove, argued the cause and was on the brief for appellee.

HOLMES, Justice:

Defendant, Didde-Glaser, Inc., appeals from a jury verdict of $17,440, for breach of an oral contract, in favor of plaintiff, Care Display, Inc. Defendant denied the existence of a contract and alleged in the alternative that if an oral contract was found to exist recovery thereon was barred by the statute of frauds.

The factual situation was extremely complex and will be set forth in some detail.

Care Display, Inc., located in Morris County, specializes in the design and construction of trade show exhibits for use at conventions, trade shows, fairs and similar exhibitions where merchants, manufacturers, producers and others display their products and services. Allan Hastings, president of Care Display, was the principal person representing Care Display. Didde-Glaser, Inc., located at Emporia, Lyon County, manufactures and sells printing presses and collators and frequently exhibits its wares at industrial trade shows. Various employees of Didde-Glaser, including Bob VanSickle, Advertising and Sales Promotion Manager until April or May, 1974, William D. Vancelette, Sales Manager, Howard W. Fanset, successor to VanSickle, and Lloyd A. Utley, Jr., Marketing Division Manager, were involved at one time or another in the negotiations and dealings with Care Display. Didde-Glaser had developed a new product it wanted to introduce at a trade show, to be held in Chicago, known as "Print '74," which was to be the largest graphic arts trade show ever conducted in the United States. Didde-Glaser had done business with Care Display on at least three prior occasions.

In the fall of 1973, VanSickle of Didde-Glaser contacted Hastings about the design and construction of a display booth to be used at the "Print '74" show to be held in November, 1974. These same two individuals had dealt with each other on prior occasions when Didde-Glaser utilized the services of Care Display. Between November, 1973, and May, 1974, VanSickle and Hastings had numerous conversations relative to the design and construction of the display booth. Costs, size, lighting, various design concepts, products to be displayed and other technical matters were discussed. The first written communication between the parties appears to have occurred May 3, 1974, when Hastings submitted a written proposal including a proposed design at a cost to Didde-Glaser of $46,907.00. Hastings testified that between May 3, 1974, and May 17, 1974, he received a telephone call from VanSickle in which costs, changes in the May 3rd proposal and other items were discussed, including whether Care Display actually had a contract with Didde-Glaser. Hastings testified VanSickle assured him that he had cleared things with his superiors and Care Display had a contract. There was no written confirmation of this conversation. About this time, the date being indefinite, VanSickle left the employment of Didde-Glaser to be succeeded by Fanset. It appears to be undisputed that at the time VanSickle had his May, 1974, conversation with Hastings numerous details in connection with the project were still undecided, including the cost, although all of the various cost proposals and discussions were within the original budget estimate specified by Didde-Glaser. On May 17, Hastings met with Vancelette to review additional proposals, various alternatives, materials and three different cost packages. On June 28, Fanset wrote Hastings enclosing specifications as a guideline for the proposed display booth and in his letter invited Care Display to submit a bid for the job. It appears the same guidelines and request for bids were sent to several other exhibit makers. On July 9, Hastings wrote Vancelette stating his surprise at the turn of events and indicating he felt Care Display had a firm contract and had been misled. Care Display asked for payment of their expenses to date, pointed out the work and effort already done, and also indicated the desire to proceed with completion of the project. On August 7, Fanset wrote Hastings advising the job was being given to another company located in Chicago. August 12th, Hastings wrote Utley pointing out the commitment from VanSickle and asked for a further meeting. On September 3rd, a meeting was held which included Hastings from Care Display and Utley, Fanset, Vancelette, and possibly others from Didde-Glaser. VanSickle, no longer being with Didde-Glaser, was not present at the meeting and did not testify at the trial. At this meeting, Hastings submitted a revised proposal based upon Didde-Glaser specifications. Although the evidence is conflicting, Hastings testified he came away from the September 3rd meeting with the understanding Care Display had the contract. Didde-Glaser officials testified they had acknowledged to Hastings they liked the Care Display proposal but contended he was told any contract would be subject to certain conditions which would be forwarded by mail. September 6th, Fanset wrote Hastings setting forth certain conditions which were acceptable with one exception. Didde-Glaser contends they had become concerned because Care Display employed non-union labor and might not be allowed to install the display in Chicago. As a result, Didde-Glaser required a $250,000.00 performance bond to cover anticipated losses if Care Display did not fully perform. Care Display could not meet this new condition as the premium cost of such a surety bond was prohibitive. Didde-Glaser gave the job to another firm and on October 2nd, Hastings made a demand upon Utley for the sum of $17,440.00 damages for breach of contract and subsequently Care Display filed suit to recover that amount. The jury found in favor of Care Display for the full amount of the prayer and Didde-Glaser appeals.

Appellant's first point is that the trial court erred in failing to sustain defendant's motion for a directed verdict at the close of plaintiff's evidence and at the conclusion of the trial.

It is appellant's contention that while extensive negotiations took place over a considerable length of time, there was never a meeting of the minds on the terms necessary to constitute a contract. In support of its position Didde-Glaser points out evidence it contends shows a failure of the parties to reach agreement, including the lack of follow-up confirmation of the VanSickle Hastings May, 1974, telephone call; the failure of Hastings to mention the VanSickle call to other Didde-Glaser people; the subsequent submission of numerous plan changes and cost figures; lack of agreement on price and quantity; the lack of a ...