International Shoe Co. v. Lacy

• Decision Date: 20 March 1944
• Docket Number: 17174.
• Citation: 53 N.E.2d 636,114 Ind.App. 641
• Parties: INTERNATIONAL SHOE CO. v. LACY.
• Court: Indiana Appellate Court

53 N.E.2d 636

114 Ind.App. 641

INTERNATIONAL SHOE CO. v. LACY.

No. 17174.

Appellate Court of Indiana, in Banc.

March 20, 1944

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 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 until the same shall have been reduced to writing, Avery v. Citizens' Loan & Trust Co., Adm'r, 1932, 94 Ind.App. 161, 180 N.E 23, but where they assent to all of its terms, the mere reference to a future contract in writing will not negative the existence of a present and completed one. Featherstone, etc., Mach. Co. v. Criswell, 1905, 36 Ind.App. 681, 75 N.E. 30. It was not contemplated here that the reduction of the agreement to writing should be a condition precedent to the formation of a contract, nor that the writing should include terms in addition to those verbally agreed upon. The writing was expected to be nothing more than a letter or memorandum from appellant confirming the arrangement as made and constituting a memorial of it. The non-existence of a writing is therefore not decisive of whether there was actually a contract, although the failure of the parties to include material terms in the agreement actually made may of course prevent any rights or obligations from arising on either side because of the lack of a completed contract. Rosenfield v. United States Trust Co., 1935, 290 Mass. 210, 195 N.E. 323, 122 A.L.R. 1210.

The appellant next contends the agreement is lacking in mutuality, and is entirely too indefinite and uncertain to furnish a basis for the recovery of damages for its breach. The agreement, both as pleaded and proven, is entirely silent in many particulars. The appellee did not agree to buy any particular quantity of shoes at any particular price on any stated terms after the initial purchase. She did not agree to buy her requirements of shoes, nor in fact to make any further purchases of shoes from appellant, nor to continue to purchase or sell shoes for any stated time, nor to handle appellant's shoes exclusively. The appellant, on the other hand, did not agree to continue to sell shoes to appellee for any particular time or on any stated terms or at all. It did not agree to extend exclusive representation on any fixed date, nor could it, for as long as Seulean had in his possession an unsold pair of its shoes previously purchased, he could rightfully continue to sell them. It did not agree to continue exclusive representation once commenced for any certain time, nor under any certain conditions. It may logically be assumed that the parties expected, the one to sell and the other to purchase, shoes so long as it continued to be convenient, desirable and profitable...