OPINION
REYNOLDS, J.--
This
suit was instituted in the Circuit Court of Jackson County on
a petition for an unpaid balance of account for cigars sold
and delivered by the plaintiff to the defendant. The amount
sued for was $ 5223.46 and interest. The defendant admitted
that said amount was due to the plaintiff as the balance for
cigars delivered by the plaintiff to the defendant. It
however, filed an amended counterclaim and answer, upon which
the cause was tried, in which it alleged that, on or about
December 17 or 18, 1931, the plaintiff entered into an oral
contract with the defendant by the terms of which it was
agreed that the defendant, for a period of one year from said
date, should act as exclusive distributor for the plaintiff
in the sale of San Felice and El Verso cigars in all of the
State of Kansas and the western part of the State of
Missouri, upon certain conditions set forth therein.
Such
amended answer and counterclaim is as follows:
"Comes
now defendant and for its answer and counterclaim to
plaintiff's petition herein filed states as follows
to-wit:
"1.
Defendant admits that it is a corporation organized and
existing under the laws of Missouri, with its principal place
of business in Kansas City, Missouri, and denies each and
every other allegation in plaintiff's petition contained.
"2.
Defendant, for its further answer and counterclaim against
the plaintiff alleges that on or about the 17th or 18th day
of December, 1931, plaintiff made and entered into an oral
contract with the defendant by the terms of which it was
agreed between the parties that the defendant should act as
exclusive distributor for the plaintiff in the sale of San
Felice and El Verso cigars in all of the State of Kansas and
the Western part of the State of Missouri.
"By
said contract it was provided that the defendant should use
its best efforts to promote the sale and use of said cigars
in the territory mentioned and should engage travelling cigar
salesmen to cover said territory for said purpose and should
carry the name of said cigars upon its delivery trucks and
upon windows in front of its place of business in Kansas
City, Missouri.
"It
is further provided in said contract that the special
discount of four per cent (4%) which plaintiff had heretofore
been giving the defendant (defendant had been exclusive
distributor for plaintiff for several years) should be
discontinued on condition that plaintiff should engage in a
radio and other advertising program for the
further sale of said cigars, all of the expense of which
should be borne by plaintiff, and on condition that the
defendant should continue to act as the exclusive distributor
for the plaintiff in the sale of
said cigars in said territory for a year from said date in
December, in order to allow the defendant to obtain the
benefits and profits from the increase in the sale of said
cigars due to said radio and advertising program, which
profits and increased sales it was believed by both of the
parties to said contract and by both plaintiff and defendant
herein would more than make up to the defendant the loss of
the said four percent (4%) special discount which was to be
and was discontinued December 31st, 1931.
"Defendant
further alleges that said contract remained in full force and
effect between the parties hereto and that both operated
thereunder from said 17th or 18th day of December, 1931,
until the day of March, 1932, when the plaintiff wrongfully
breached said contract and refused to send defendant further
cigars in accordance therewith; during all said time said
contract was in force the defendant performed all of its
obligations under the terms and conditions thereof and used
its best efforts to promote and develop and increase the sale
of said cigars to continue to build up the reputation of said
cigars in said trade territory and in such efforts expended
large sums of money and much time.
"Defendant
further says that it had been the exclusive distributor in
said territory for said cigars for plaintiff since October,
1925, and that it had built up and promoted the sale of said
cigars in said territory and that the exclusive right granted
to defendant on the 17th or 18th day of December, 1931, to
continue as the exclusive distributor of said cigars in said
territory for a year from said date, was of great value to
the defendant and that the breach of said contract by the
plaintiff in March, 1932, as hereinafter set out greatly
damaged this defendant in the loss of profits and the loss of
business.
"Defendant
further says that on the day of March, 1932, plaintiff,
without just cause, reason or excuse, and without any
previous notice of any sort to defendant, notified defendant
that it could no longer act as the agent of plaintiff in the
sale, distribution and promotion of said cigars in said
territory; and further notified defendant that plaintiff
would no longer comply with the terms and conditions of its
contract with defendant; and plaintiff immediately and in
disregard of its contractual obligation with defendant
refused to further furnish defendant with any cigars for
distribution in said territory.
"Defendant
further states that by the breach of said contract by
plaintiff in suddenly taking away from the defendant the
agency of said cigars and in refusing to sell and furnish
defendant with further cigars for
distribution in said territory, defendant was greatly damaged
in said trade territory and in its business and loss of
profits.
"Defendant
further says that under the terms and conditions of said
contract it was entitled to act as the exclusive agent of
plaintiff in said territory for one year from said date and
that it is entitled to receive under said contract the
profits which would have accrued to it up to and including
December 17 or 18th, 1932; that defendant is, therefore,
entitled in this action to receive from the plaintiff all
profits that would have accrued to it under said contract
from March , 1932, to and including December 17th or 18th,
1932; that said profits amount to Twelve Thousand ($
12,000.00) Dollars, or more, and that defendant has been
damaged in said amount by the loss thereof.
"Wherefore,
defendant prays judgment on its counterclaim against
plaintiff in the sum of Twelve Thousand ($ 12,000.00) Dollars
as damages for the profits that would have accrued to it
under said contract from March , 1932, up to and including
December 17th or 18th and for its costs of suit in this
behalf expended."
To the
amended answer and counterclaim of defendant, upon which the
cause was tried, the plaintiff filed a general denial.
Upon
the trial of the cause before The Honorable JAMES R. PAGE, at
that time judge of the Circuit Court, a verdict for the
plaintiff upon the plaintiff's petition in the sum of $
5745.81 and for the defendant upon its counterclaim in the
sum of $ 7000 was rendered, upon which verdict a final
judgment was rendered in favor of the defendant in the sum of
$ 1254.19.
At the
conclusion of the plaintiff's evidence on said trial, the
defendant requested instructions P-1 and P-2 in the nature of
demurrers, which are as follows:
"Instruction
P-1. At the close of the defendant's evidence offered on
defendant's counterclaim, the court instructs the jury
that under the law and the evidence, your verdict must be in
favor of the plaintiff
and against the defendant on defendant's counterclaim.
"Instruction
P-2. At the close of all the evidence, the court instructs
the jury that under the law and the evidence, your verdict
must be in favor of the plaintiff and against the defendant
on defendant's counterclaim."
Such
instructions were refused by the trial court; and the case
was submitted to the jury upon other instructions, among
which was instruction No. 2 for the defendant, which is as
follows:
"The
court instructs the jury that, if you believe and find from
the evidence that on or about the 17th day of December, 1931
plaintiff and defendant entered into an oral contract by the
terms of which it was agreed between the parties that the
defendant was to act as plaintiff's sole and exclusive
distributor of San Felice and El Verso
cigars in the State of Kansas, and the western half of the
State of Missouri; and
"If
you further believe and find from the evidence that by the
terms of said contract, if any, the plaintiff agreed to sell
and furnish to the defendant at certain fixed discounts, said
cigars in quantities sufficient to fill defendant's
orders and sales of said cigars in said territory for a
period of one year from the date of said contract, if you
believe and find from the evidence said contract was entered
into; and
"If
you further believe and find from the evidence that by the
terms of said contract, if any, the defendant agreed to act
as the sole and exclusive distributor for plaintiff for said
cigars in said territory and to use his best efforts to
promote the sale of said cigars during the life of said
contract, if any; and
"If
you further believe and find from the evidence the defendant
kept and performed the agreements and covenants of said
contract, if you believe and find from the evidence said
contract was entered into, and if you further believe that
the plaintiff without just cause or excuse breached said
contract, if...
