Int'l Shoe Co. v. Lacy, No. 17174.

• Docket Nº: No. 17174.
• Citation: 114 Ind.App. 641, 53 N.E.2d 636
• Case Date: March 20, 1944
• Court: Court of Appeals of Indiana

114 Ind.App. 641
53 N.E.2d 636

INTERNATIONAL SHOE CO.
v.
LACY.

No. 17174.

Appellate Court of Indiana, in Banc.

March 20, 1944.

Appeal from Superior Court, Marion County; Chester L. Zechial, Special Judge.

Action by International Shoe Company against Laura B. Lacy, doing business as Lacy's Conformal Shoe Company, on account for shoes sold and delivered, wherein defendant filed cross-complaint for damages for breach of contract allegedly giving defendant an exclusive selling agency in the City of Indianapolis. Judgment for plaintiff on its complaint and for defendant on her cross-complaint, and plaintiff appeals.

Judgment for plaintiff on the complaint affirmed. Judgment for defendant on cross-complaint reversed.

[53 N.E.2d 637]

Owen S. Boling, Newberger, Simon & Davis and Alex Asch, all of Indianapolis, for appellant.

Walter G. Todd and Milton E. Craig, both of Indianapolis, for appellee.

DRAPER, Judge.

Appellant sued appellee on account for certain shoes sold and delivered. Appellee admitted the indebtedness and filed what she denominated a cross-complaint, seeking damages for the breach of an alleged contract between the parties, by the terms of which the appellee was to have the exclusive right to sell appellant's ‘Conformal’ shoes in the City of Indianapolis.

The court found for appellant on its complaint and for appellee on her cross-complaint. The only question presented concerns the cross-complaint which alleges, among other things, that on February 19, 1940, it was agreed between the parties that appellee ‘would undertake to establish a retail store or salon in the City of Indianapolis for the sale of Conformal shoes, manufactured and sold by cross-defendant (appellant) and would purchase a stock of shoes from cross-defendant, and in consideration thereof said cross-defendant did then and there promise and agree that this cross-complainant (appellee) would be the sole and exclusive dealer of said brand of shoes within and for the City of Indianapolis, Indiana. That at the time, viz., February 19, 1940, one John Seulean was a duly appointed, constituted and authorized dealer in Conformal shoes manufactured by cross-defendant, and it was then and there further agreed by and between cross-complainant and cross-defendant that this cross-complainant would and should be the only dealer in that brand of shoes in Indianapolis, Indiana; and as an inducement to this cross-complainant to purchase a quantity of said shoes the said cross-defendant * * * gave explicit orders * * * not to ship the spring order of said Seulean, * * * and to ship him no more shoes. That relying upon the express agreement * * *, this cross-complainant * * * confirmed a tentative

[53 N.E.2d 638]

order for * * * a quantity of said shoes, * * * and said shoes were shipped and received’ and said cross-complainant did open and continuously operate said shoe store up to this date.

It further alleges that the appellee requested the appellant to reduce the agreement to writing, and the appellant agreed to confirm it by letter, which was never done; that appellee has purchased further orders of shoes from appellant but that appellant ‘in deliberate violation of the terms of said agreement * * * has recognized the said Seulean as a dealer and made frequent sales of said Conformal shoes to him,’ and he continues to deal in said shoes in said city, all to appellee's damage.

The evidence shows that after some preliminary negotiations the parties did have conversations from which the agreement might be found or inferred substantially as alleged. On the 13th day of March, 1940, appellant wrote appellee a letter setting out the terms and conditions under which it would extend exclusive representation to appellee, but that letter is not shown to have been received by appellee. The store was opened April 8, 1940, and appellee continued to buy shoes from appellant until February 28, 1941, but appellant continued to sell to Seulean.

The appellant contends there was no binding contract because the agreement of the parties was never reduced to writing. There is no binding contract where, although its terms have been orally agreed upon, the parties have also agreed that they shall not be bound...