Getschow v. Commonwealth Edison Co.
| Decision Date | 20 December 1982 |
| Docket Number | No. 81-2578,81-2578 |
| Citation | 67 Ill.Dec. 343,111 Ill.App.3d 522,444 N.E.2d 579 |
| Parties | , 67 Ill.Dec. 343 Roy M. GETSCHOW, Plaintiff-Appellee, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Laurence D. Lasky, F. Willis Caruso, John W. Treece, and Isham, Lincoln & Beale, Chicago, for defendant-appellant.
Paul E. Plunkett, Stanley J. Parzen and Mayer, Brown & Platt, Chicago, for plaintiff-appellee.
Plaintiff brought this action against Commonwealth Edison Company (Edison) for tortious interference with contractual relations. After hearing several days of testimony, the trial court entered judgment for plaintiff in the amount of $295,000, representing both compensatory and exemplary damages. On appeal, defendant contests the court's findings with respect to liability, as well as the amount and nature of damages awarded.
The record discloses the following facts:
During the early 1970's, plaintiff entered into the business of representing building trades contractors to potential buyers of their services. Plaintiff sought sales positions with companies in different fields of the building trades which would enable him to sell the products and services of each contractor separately, to present a single bid to an owner on behalf of several or all of his contractor-clients, and to arrange for two or more of his contractors to "co-venture" portions of a construction project. By January of 1976, plaintiff had entered into separate employment contracts with seven contractors, each in a different field. While the terms of these contractual arrangements varied, at the time of Edison's alleged interference plaintiff was receiving salary plus a percentage commission from five of the seven contractors and a straight commission from the remaining two. Plaintiff had become successful in selling the products and services of his employers to many owners and his sales and commissions had grown from a few thousand dollars in 1972 to more than $20,000 during the twelve months prior to Edison's claimed interference.
Edison was and is one of the largest customers of building contractors in Chicago due to its extensive construction and maintenance work. In his previous position as the president of an industrial pipefitting concern, plaintiff had worked closely with Edison over a seven-year period, during which time he developed business, personal and social ties with many of the Edison personnel, including its buyers and construction engineers, and Edison was among the many companies that plaintiff later called upon as a salesman for his principals. By the spring of 1976, plaintiff had been calling on Edison's buyers in this capacity for more than five years, had been successful in placing his contractors on Edison's approved bidders list and had earned commissions on many successful bids submitted to Edison.
The events leading up to plaintiff's cause of action against Edison began in March of 1976 with a meeting between plaintiff and Edward Jennett, Jr., sales manager for Johnson Controls, a potential contractor-client. The purpose of the meeting was to discuss a possible employment relationship, and at that time plaintiff apparently mentioned certain "contracts" he had with Edison. At the time of said meeting, Johnson Controls had a bid pending at Edison for work on a new project. It is undisputed that although there was mention of the pending bid, plaintiff did not then or at any other time suggest that he could or would do anything with regard to it.
Jennett reviewed plaintiff's request for employment with his superior at Johnson, Joseph Lewis. Despite Jennett's efforts to advise Lewis only of plaintiff's good faith intentions in seeking a sales position with Johnson, Lewis prepared a memorandum entitled "Mr. Getschow's Offer" relating to plaintiff's solicitation of Johnson's business. The memorandum stated:
* * * Mr. Getschow reports that he is an independent Contractor Representative who represents a number of contractors doing work with Commonwealth Edison. * * * He reports that he knows the right people at Commonwealth and would be in a position to help us. * * * Ned Jennett called me with this information and said that Mr. Getschow needed an answer. My response to Ned's call was that Mr. Getschow's request sounded like a payoff.
Although Jennett was the only individual at Johnson Controls who ever actually talked with plaintiff, Jennett never saw or knew of the existence of the Lewis memorandum prior to the ensuing trial. The trial court ultimately found that the memorandum had "no validity in substance or fact."
Some time later, in May of 1976, the Lewis memorandum came into the possession of Thomas Ayers, Edison's chairman. Ayers referred the memo to Glenn Beeman, a vice president in purchasing, who, in turn, referred the matter to H.L. Holmberg "for investigation." Holmberg reported back the following day, after having spoken with the buyers in Edison's purchasing department and having found no indication that any payoffs had been made or that plaintiff had been instrumental in securing any Edison contracts for his clients. Holmberg also showed Beeman the "calling card" which plaintiff had distributed to Edison's purchasing department listing the seven contractors plaintiff represented, and a "Business Placed" memorandum showing when Edison had requested bids from plaintiff's clients and the dollar amount of business that Edison had done with each during 1974 and 1975. It is clear that no one at Edison ever checked with Jennett or anyone else at Johnson Controls to determine if the suggestion of a "payoff" in the Lewis memo had any factual basis, nor did Edison investigate the existence of any conflicts with respect to plaintiff's other contractors, although one of them was at that time a principal bidder on the same project as Johnson. There was no evidence adduced at trial that plaintiff had bribed or attempted to bribe any Edison employee; to the contrary, the evidence showed that Edison had an elaborate system of controls for analyzing incoming bids which made "payoffs" almost impossible.
In spite of the fact that Holmberg's investigation revealed nothing to substantiate the allegations in the Lewis memorandum, Beeman proceeded to draft a letter intended for plaintiff's contractor-clients. Beeman's sending of an identical letter to each of plaintiff's seven contractors constituted the act of "interference" on which plaintiff's cause of action is based. The letter stated:
Covenant Against Brokerage. The Contractor warrants that no person or commercial agency has been engaged to solicit or secure the Contract, and agrees that the Contractor shall pay no compensation to any person or commercial agency for soliciting or securing the Contract, except in the case of bona fide employes or bona fide established commercial agencies maintained or utilized on a continuous basis by the Contractor for the purpose of securing business generally. For breach or violation of this warranty, the Owner shall have the right to annul the Contract without liability or in its discretion to deduct from the contract price or consideration, or otherwise recover, the full amount of any such compensation paid.
Prior to sending the letter to plaintiff's contractors on May 25, 1976, Beeman called plaintiff in and showed him the draft. At that time plaintiff stated that he did not understand the letter, but that if it was sent he would be terminated by his contractors and his reputation would be damaged. Beeman's response was that he was not interested in plaintiff's business generally, but that he would no longer allow plaintiff to call on Edison. Beeman did not tell plaintiff about the "payoff" allegations in the Lewis memo, nor was plaintiff given any opportunity to explain his employment relationship with the seven other contractors. Beeman then mailed eight copies of the letter, one to each of plaintiff's present employers and one to Johnson Controls. At plaintiff's request, the parties met again some two weeks later, at which time plaintiff told Beeman that he had already been terminated by some of his contractors and asked if anything could be done to save his business, to which Beeman responded negatively. Within a few months all seven of plaintiff's employers had terminated their contracts with him.
The trial court found that the Edison letter was the cause of each of the terminations and that the Lewis memorandum was the actual and sole cause of Edison's action in mailing the letter. The court further found the language in the quoted "Covenant Against Brokerage" to be ambiguous and, as used by Edison for the first and only time against plain...
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