Eston v. Robert Brown, Ltd., 78.

• Decision Date: 07 October 1940
• Docket Number: No. 78.,78.
• Parties: ESTON v. ROBERT BROWN, Limited.
• Court: Michigan Supreme Court

294 Mich. 675

293 N.W. 904

ESTON

v.ROBERT BROWN, Limited.

No. 78.

Supreme Court of Michigan.

Oct. 7, 1940.

Suit by Louis M. Eston against Robert Brown, Limited, to recover damages for an alleged breach of contract under which the plaintiff was to sell liquor for the defendant. From a judgment for the plaintiff in an amount less than that demanded, the plaintiff appeals.

Judgment affirmed.

Appeal from Circuit Court, Wayne County; Mark D. Taylor, judge.

Argued before the Entire Bench.

Harold Goodman, of Detroit, for plaintiff and appellant.

Wiley, Streeter & Ford, of Detroit, for defendant and appellee.

NORTH, Justice.

In this suit plaintiff seeks to recover damages for an alleged breach of contract by defendant. It is plaintiff's claim that except for defendant's breach of the contract commissions in the amount of $6,063.40 would have accrued to him as a broker incident to the sale of defendant's scotch whisky, and he also claims there is due him $45.29 for necessary expenses. Plaintiff based his claim upon an alleged express contract for a period of two years. On trial without a jury the circuit judge held plaintiff did not establish the alleged contract. From a judgment for plaintiff in the amount of $45.29 he has appealed.

This controversy was here on a former appeal, 287 Mich. 44, 282 N.W. 895; but the question then presented and decided did not go to the merits and is not controlling of the present appeal. Defendant is a corporation organized under the laws of Great Britain and has its principal place of business in the city of Glasgow, Scotland. Plaintiff, a resident of Detroit, was in the commission business and prior to March, 1935, had been selling scotch whisky for defendant. In a letter of October 31, 1934, plaintiff asked defendant for a commission agreement for a period of five years. January 3, 1935, defendant agreed to give plaintiff a commission of 7 shillings per case; but declined to give plaintiff a five year contract. February 21, 1935, plaintiff wrote defendant: ‘It seems to me I am justly entitled to the contract in accordance with my views * * *.'

March 6, 1935, defendant acknowledged receipt of plaintiff's letter of February 21, 1935, and again declined to give plaintiff a five year contract. Defendant wrote: ‘* * * we * * * will grant you the agency for two years, after the style of the enclosed draft copy, provided the life of the Michigan Liquor Control Commission continues so long.'

Simultaneously with the above letter defendant forwarded to plaintiff the ‘draft copy’ or printed blank from of a contract. This printed form included numerous provisions which were not at all applicable to the services which it was contemplated plaintiff would render defendant in the state of Michigan where the purchasing of liquor at wholesale was exclusively under the control of the Michigan Liquor Commission; but some of the provisions in the blank form were applicable. Among these latter was the following: ‘Fourteenthly-Either party to this Agreement shall be entitled to terminate the same at the end of one year, or at any time thereafter upon giving to the other party three months' notice in writing of their intention so to do, and it is hereby agreed that notice of termination by cablegram is to be taken as equivalent to notice in writing.'

On March 25, 1935, plaintiff wrote defendant: ‘I wish to acknowledge receipt of your letter of the 6th, wherein you appoint me your agent, for the State of Michigan, for a period of two years, acting for you in the sale and distribution of Four Crown and Old Priory, provided, Liquor Control Commission is still in existence.'

Thereafter and on April 16, 1935, defendant wrote plaintiff a letter the pertinent part of which reads: ‘In regard to your letter of 25th March, we can only express our appreciation of the hard work you are doing, and whilst we have no agency agreements anywhere where the liquor situation is handled by State Control, yet we can only say if you continue to look after our interests as you have done and secure a good share of the business, we see no reason why the arrangement should not continue for a further period at the end of two years, provided the Liquor Control Commission is still in existence.'

If there was any agreement between these parties which made plaintiff defendant's agent for a fixed term, it must be found in the above quoted correspondence. Subsequent to this correspondence, the...