Dunnan & Jeffrey, Inc. v. Gross Telecasting, Inc.
| Decision Date | 13 June 1967 |
| Docket Number | Docket No. 1677,No. 2,2 |
| Citation | 151 N.W.2d 194,7 Mich.App. 113 |
| Court | Court of Appeal of Michigan — District of US |
| Parties | DUNNAN & JEFFREY, INC., a New Jersey corporation, Plaintiff- Appellant, v. GROSS TELECASTING, INC., a Michigan corporation, Defendant-Appellee |
Lawrence I. Levi, Orville J. Thill, and Frank M. Wiseman, of Marx, Levi, Thill & Wiseman, Detroit, for appellant.
John L. Collins and David C. Coey, Foster, Campbell, Lindemer & McGurrin, Lansing, for appellee.
Before T. G. KAVANAGH, P.J., and McGREGOR and QUINN, JJ.
Plaintiff filed complaint seeking damages from defendant on a breach of contract theory. Defendant answered and denied the contract on the basis of no consideration and failure of consideration. Defendant also pleaded as affirmative defenses that there was no contract because there was no consideration and in the alternative, defendant's nonperformance was excused because of material breach by plaintiff or because the breach by plaintiff resulted in total failure of consideration. Plaintiff replied to the affirmative defenses and denied them. After plaintiff answered certain interrogatories and requests for admissions, defendant moved for summary judgment pursuant to GCR 1963, 117.2(1). In granting the motion, the trial judge found there was no consideration and hence no contract between plaintiff and defendant, and since this was true, plaintiff's rights were under prior contracts between defendant and Guild Films, Inc. and plaintiff's failure to perform thereunder entitled defendant to claim a breach which barred this action.
On appeal, the controlling question raised is whether plaintiff failed to state a claim upon which relief can be granted. Plaintiff also questions the propriety of the trial judge considering more than the pleadings in ruling on a motion for summary judgment under GCR 1963, 117.2(1). August 12, 1959, Guild Films, Inc. and defendant entered into 2 contracts under which the latter agreed to furnish the former a total of 728 one minute spots to be used within a 2 year period after October 1, 1959 for which the former agreed to furnish the latter 370 cartoons for unlimited use by defendant during the same 2 year period.
August 24, 1959, defendant received the following letter from plaintiff:
'Mr. Tom Jones
WJIM-TV
East Saginaw at Howard Street
Lansing, Michigan
Dear Tom:
This will confirm schedule of announcements that your station will telecast for the products of our client Lanolin Plus, Inc. as follows:
A total of 728 Class 'C' one-minute spots to be run at the rate of a minimum of 7 spots per week and a maximum of 14 spots per week, commencing on or before October 1, 1959 and terminating when 728 Class 'C' one-minute spots have been telecast.
Station acknowledges that the acquisition of these time spots by Dunnan & Jeffrey is on behalf of its client Lanolin Plus, Inc., and that all of said time spots shall be used on behalf of any and all of products of said Lanolin Plus, Inc., but Dunnan & Jeffrey reserves the right in the event for any reason that Lanolin Plus, Inc. does not utilize all of said time spots, to utilize, hold all or any balance thereof for the advertising of goods, products or services of other sponsors of equal caliber and qualifications.
These spots are noncancellable by either party.
In the event of possible delays in distribution, production of television commercials or other emergencies, agency has right to cancel schedule temporarily, in which case ending date will automatically adjust itself so that no spots will be lost due to expiration of contract.
WJIM-TV has received full consideration for the use of the aforesaid spots and acknowledges Dunnan & Jeffrey's absolute right thereto.
WJIM-TV will provide affidavits of performance at the end of each month showing exact times and products telecast.
Please sign below where indicated to evidence your acceptance of and your agreement with the foregoing provisions. The signing hereof by the parties hereto, by their respective duly authorized corporate officers will constitute this instrument a binding agreement.
Very truly yours,
DUNNAN & JEFFREY, INC.
WJIM-TV
By _ _ (L.S.)'
This letter was signed in the space provided therefor by an...
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