Crossland v. KENTUCKY BLUE GRASS SEED G. CO-OP. ASS'N, 7812.

• Decision Date: 05 May 1939
• Docket Number: No. 7812.,7812.
• Citation: 103 F.2d 565
• Parties: CROSSLAND v. KENTUCKY BLUE GRASS SEED GROWERS' CO-OP. ASS'N.
• Court: U.S. Court of Appeals — Sixth Circuit

103 F.2d 565 (1939)

CROSSLAND v. KENTUCKY BLUE GRASS SEED GROWERS' CO-OP. ASS'N.

No. 7812.

Circuit Court of Appeals, Sixth Circuit.

May 5, 1939.

Rufus Lisle, of Lexington, Ky. (Bloodgood, Kemper & Passmore, of Milwaukee, Wis., and Rufus Lisle and Hunt & Bush, all of Lexington, Ky., on the brief), for appellant.

D. L. Pendleton, of Winchester, Ky. (D. L. Pendleton, of Winchester, Ky., on the brief), for appellee.

Before HICKS, SIMONS, and ARANT, Circuit Judges.

SIMONS, Circuit Judge.

In an action by the appellant for breach of an executory written contract, partly performed, the District Court sustained a motion to dismiss in the nature of a demurrer on the ground that the contract lacked the essential element of mutuality, and that its terms were too vague and indefinite to afford a basis for adjudicating liability. In this situation it becomes necessary to consider the writing, the situation of the parties, and the allegations of the petition in respect to circumstances attending its execution in the light most favorable to the plaintiff.

The defendant is a Kentucky corporation, organized, as its name implies, for the purpose of acquiring and selling blue grass seed grown and produced in Kentucky and elsewhere. At the time of the execution of the agreement it owned approximately 16,700,000 pounds of seed which it had been unable to sell. The plaintiff is a citizen and resident of Wisconsin who had for many years been engaged in the business of selling seed and had established a wide acquaintance with dealers therein throughout the United States and in foreign countries. In February, 1934, he was invited to meet with the officers of the defendant to discuss his employment as special sales representative to aid in marketing accumulated stock. As a result of the conference the contract printed in the margin¹ was executed.

It will be noted in the preamble that the defendant was the owner of seed which it desired to sell, that the plaintiff was to become its employee for that purpose, to devote but part of his time and effort in the sale. It will also be noted that a drawing account was made available to him for three months, the amounts thereof to be charged against his commission of 5%, and that the contract was to be ineffective in the event of sale or other disposition of seed then held by the association, and was to be subject to confirmation by its Board of Directors. On February 17, 1934, Crossland was advised by the president of the appellee that his appointment as special general sales representative had been confirmed and that all orders received as a result of his efforts, either by personal contact, through circularization, and including repeat orders, would be recognized as entitling him to the full rate of the agreed commission. On the same date the wholesale seed trade of the United States and Canada was circularized to the effect that the association's Board of Directors had solicited and engaged the services of the appellant after a careful inquiry into his ability, and that he had authority to quote prices, subject to confirmation of orders.

On June 4th the appellee advised Crossland by letter that the proceeds of sales were then sufficient to discharge its debt to the Federal Intermediate Credit Bank, that it was its understanding that the contract did not extend beyond June 1st, that it was not binding upon the association until ratified by proper action of the Board of Directors, who had refused to ratify it, and that it was now desired to close accounts and to cancel the contract.

In his petition the plaintiff avers that after the contract was executed and at great expense of time and money he circularized dealers over a wide area at great expense, visited many places for the purpose of furthering the selling of seed, and sold a quantity of it for the aggregate sum of $66,640.52, receiving the agreed commissions thereon; that on June 4, 1934, when the defendant undertook to cancel the agreement it still had in its hands unsold in excess of 3,411,000 pounds; that he could and would have sold the seed then remaining at defendant's prices to solvent and responsible persons, and that by reason of the defendant's cancellation he lost commissions thereon and was damaged in the sum of $30,000.00.

The contract is, of course, indefinite in at least two respects. It does not recite specific acts which the sales representative was obliged to perform, and it is indeterminate as to its duration. This indefiniteness does not, however, justify a conclusion that it is unilateral and so wanting in mutuality. Obligations may be implied even when incapable of exact measurement,...