Grimm v. Baumgart
| Decision Date | 11 April 1951 |
| Docket Number | No. 18083,18083 |
| Citation | 97 N.E.2d 871,121 Ind.App. 626 |
| Court | Indiana Appellate Court |
| Parties | GRIMM et al. v. BAUMGART. |
Brubaker, Rockhill & Lee, Warsaw, Ortmeyer, Bamberger, Ortmeyer & Foreman, Evansville, for appellants.
Newman & Salm, Evansville, Waldo Hendrickson, Boonville, for appellee.
In this petition for rehearing appellee says that deciding this case on the authority of International Shoe Company v. Lacy, 1944, 114 Ind.App. 641, 53 N.E.2d 636, 639, we overlooked the very vital fact that the appellee herein gave valuable consideration for the contract or franchise.
In the International Shoe Company case, supra, this court in its opinion pointed out that one of the contentions of appellee was: 'That appellant promised her exclusive representation in Indianapolis if she would acquire funds for the purpose from the disposition of other property, and open a store for the sale of Conformal shoes and purchase an order of shoes, and that she did so, thus performing her part of the bargain and rendering appellant's promise obligatory, and avoiding any want of mutuality.'
In answering that we said: 'However, appellee did not confine her proof of damages to the expense incurred in opening the store or to any loss in connection with the original purchase, but introduced evidence of the later loss of other profits, and it seems to us that neither party was interested in the mere opening of a store, and that they were not contracting with that in view as the end result to be accomplished, but on the contrary the object under consideration was a marketing agreement for the sale of shoes, and the promise of exclusive representation was an inseparable element of the broader executory agreement which must fall for the lack of mutuality and of certainty.'
In the case of Jordan v. Buick Motor Co., 7 Cir., 1935, 75 F.2d 447, the appellants had contributed $40,000 additional capital in order to secure an exclusive agency to sell and service Buick cars.
In support of his contention appellee cites the cases of Pennsylvania Company v. Dolan, 1892, 6 Ind.App. 109, 32 N.E. 802, Cox v. The Baltimore and Ohio Southwestern Railroad Co., 1913, 180 Ind. 495, 103 N.E. 337, 50 L.R.A., N.S. 453, and Toni v. Kingan & Co., 1938, 214 Ind. 611, 15 N.E.2d 80. Those cases dealt with contracts for lifetime jobs in exchange for the execution of a release for a personal injury claim. The agreement involved herein is in the nature of a sales agency...
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