John T. Brown, Inc. v. Weber Implement & Auto. Co., 43332
| Decision Date | 14 September 1953 |
| Docket Number | No. 43332,No. 2,43332,2 |
| Citation | 260 S.W.2d 751 |
| Court | Missouri Supreme Court |
| Parties | JOHN T. BROWN, Inc. v. WEBER IMPLEMENT & AUTOMOBILE CO |
Montague Punch, St. Louis, for appellant.
Case, Voyles & Case, T. Jackson Case, St. Louis, for respondent.
BOHLING, Commissioner.
John T. Brown, Inc., an Illinois corporation engaged in the business of buying and selling motor vehicles, instituted this action in two counts against the Weber Implement and Automobile Company, a Missouri corporation engaged in like business. Plaintiff sought $200,000 damages in Count I for breach of contract, and $200,000 actual and $300,000 punitive damages in tort for fraud and deceit in Count II. Defendant's motion for a directed verdict as to each count was sustained at the close of plaintiff's case, and plaintiff has appealed from the judgment entered.
Plaintiff was located at Alton, Illinois, and defendant at St. Louis, Missouri. Defendant was a 'Direct Dealer' for Chrysler Corporation in the marketing of its De Soto and Plymouth automobiles in specified areas of Missouri and Illinois, including Alton.
On July 7, 1944, at defendant's place of business, plaintiff, as 'Associate Dealer,' and defendant, as 'Direct Dealer,' executed a written contract in triplicate, for the stated purpose of setting forth the terms and conditions under which Associate Dealer purchased for resale from Direct Dealer De Soto and Plymouth products, and which required Associate Dealer to maintain, among other things, a suitable place of business, including appropriate stocks of new motor vehicles, parts and accessories, salesroom et cetera. Plaintiff, as Associate Dealer, acquired the 'exclusive right to purchase from Direct Dealer De Soto motor vehicles for resale' and 'the non-exclusive right to purchase Plymouth motor vehicles for resale' in a specified area in and around the city of Alton, Illinois, shipments not to be made 'except on Associate Dealer's order.'
Item 6 of the contract explicitly provided that the relationship 'between Associate Dealer and Direct Dealer is not that of principal and agent, and under no circumstances is Associate Dealer to be considered the agent of Direct Dealer.'
Other provisions of the contract provided for its termination, so far as material here:
It was expressly agreed 'that this agreement shall terminate immediately by its own force without notice from either party in the event of,' among others, '(6) the assumption of any other line of motor vehicles for sale by Associate Dealer * * *.'
Also: 'Accordingly it is agreed that this agreement may be terminated at any time upon not less than ninety (90) or more than ninety-five (95) days' written notice by Direct Dealer or upon not less than fifteen (15) or more than twenty (20) days' written notice by Associate Dealer, but either of these periods may be reduced by mutual written consent of Associate Dealer and Direct Dealer.' The termination of the agreement operated as a cancellation of all unfilled orders; and under a termination upon Direct Dealer's notice, Direct Dealer agreed to buy and Associate Dealer agreed to sell within thirty days after termination date all unused current model motor vehicles purchased from Direct Dealer by Associate Dealer; and all unused parts for the then current and three preceding models purchased from Direct Dealer, and unused accessories or accessories packages purchased from Direct Dealer within six months of the termination date, the Associate Dealer to deliver said parts and accessories for inspection f. o. b. Direct Dealer's place of business prior to purchase.
The acceptance of orders from Associate Dealer by Direct Dealer after termination, 'or any other act of Direct Dealer shall not be construed as a renewal of the agreement nor as a waiver of the termination * * *.'
The contract further provided that if the agreement between Chrysler Corporation and Direct Dealer be terminated for any reason, then, subject to the option of Chrysler Corporation to disaffirm, the interest of Direct Dealer in the agreement was, without further act, to be assigned and become vested in Chrysler Corporation; and if such assignment occur, said agreement was to automatically terminate immediately upon the granting by Chrysler Corporation of the sales area described in the agreement to a Direct Dealer of De Soto and Plymouth motor vehicles. The Chrysler Corporation was not a party to the agreement except as above provided.
The acceptance of the contract was recommended by the Regional Manager for St. Louis and approved by the Assistant General Sales Manager, De Soto Division, Chrysler Corporation.
John T. Brown owned ninety-eight of the one hundred shares of John T. Brown, Inc. stock, and was President of plaintiff corporation. Plaintiff conducted its De Soto and Plymouth business at 1610 E. Broadway, Alton, Illinois. Mr. Brown testified he operated the Broadway Cadillac Company and sold Cadillac automobiles and General Motors Corporation's trucks in the same building; and that prior to April 14, 1947, on several occasions in St. Louis, George R. Weber, Jr., President of defendant, informed him that R. M. Rowland and C. C. Schelp, Western Sales Manager at Detroit and Regional Manager at St. Louis, respectively, of De Soto Division, Chrysler Corporation, and he had decided that if plaintiff did not improve the building and facilities, plaintiff could not continue and would be cancelled as Associate Dealer.
Mr. Weber and Charles Custer, Manager of the Wholesale Department of defendant, came to Mr. Brown's office between 9:00 and 10:00 a. m. Monday, April 14, 1947. Plaintiff's case is based on the conversation that occurred at that time. The substance of Mr. Brown's testimony, somewhat conflicting and appearing in different places in the record, is to the following effect:
Mr. Weber and Mr. Custer came to Alton to tell witness that they were going to offer him a cancellation of plaintiff's contract and wanted to know if he would agree to cancel the contract. Mr. Brown argued with them. They stated that the Plymouth and De Soto business had to be separated from the Cadillac and GMC truck business; 'that I would have to buy another building for Cadillac and GMC trucks'; and improve 1610 E. Broadway to the extent of 30,000 square feet; and that if this were done plaintiff's contract would not be cancelled. Mr. Brown stated plaintiff would do this, that De Soto and Plymouth were worth it. They stated they were going to forward a termination or cancellation notice to force plaintiff to go on; that: "If you will go on, we will treat this whole conversation and this letter'--I mean treat not the conversation but--'treat the letter null and void if you carry out what you have told us you will do."
The following day, April 15, 1947, plaintiff received a registered letter from defendant. The letter was dated April 14, 1947, and omitting address and signature read:
'Dear Sirs:
'We refer you to your Sales Agreement, No. 5493 dated July 7th, 1944.
'We wish to refer you to paragraph 8, clause No. 6 reading, 'Reasons for Termination other than by Notice' and paragraph 9, reading 'Termination by Notice.' We wish to apply these paragraphs giving you ninety (90) days from this date, notice of cancellation of this Dealer Agreement.
'Please consider this final notice of cancellation.'
Mr. Brown testified that upon receipt of the letter he 'called them on the telephone, asked 'if I would go ahead, the cancellation would be treated null and void?' and I was answered, 'Yes, sir,' by Mr. Weber and Mr. Custer.'
Plaintiff's counsel read portions of depositions given by Mr. Weber and Mr. Custer. We do not develop them fully. Each is to the following effect. After conferring with Mr. Rowland and Mr. Schelp and concluding that the only course to rectify the situation at Alton was to terminate the agreement with plaintiff, they asked Mr. Brown for a mutual termination agreement, offering to supply plaintiff over the next ninety days the same as if defendant gave plaintiff a ninety day termination notice. Mr. Brown stated defendant had the right to cancel the agreement but wanted to do what plaintiff had neglected to do. They answered that defendant had passed that point and wanted a mutual termination agreement. Mr. Brown stated plaintiff was going ahead. Mr. Weber told Mr. Brown he could not force plaintiff to sign a mutual termination agreement; that plaintiff should not spend any money expecting to sell De Soto and Plymouth automobiles in the future, and that as soon as they returned to St. Louis, defendant was going to immediately mail to plaintiff a termination notice. They returned to St. Louis, and prepared and mailed the letter of April 14, 1947, before the noon hour. No oral agreement was entered into.
Chiles Motors, Inc., was incorporated September 13, 1947. Its stock was held by James B. Chiles, Charles Custer, Lester Reinke, employees of defendant, and Louise R. Weber, wife of Mr. Weber. In September, 1947, it was appointed Direct Dealer for De Soto and Plymouth cars in Alton, Illinois.
Plaintiff's trial theory appears to have been that defendant was liable for all expenditures for the changes made if plaintiff used all possible speed in making the changes, no matter when completed, or what may have occurred after April 14, 1947, and although the value of the improvements still exist to plaintiff's benefit.
Plaintiff claims to have expended $116,865 in making changes at 1610 E. Broadway. We understand that the expenditures within the ninety day period could not be stated; that $43,284.15 was expended prior to December 31, 1947; and that the last construction, between September 10, 1948, and November 18, 1949, was a showroom costing $67,023.74.
Mr. Brown testified that he made arrangements to house the Cadillac automobiles and GMC trucks at 512 E. Broadway on June 13, 1947; purchasing the property for $40,000, and expending $37,000 on...
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...in certain respects, obviously inconsistent, highly unsatisfactory and completely unconvincing. Cf. John T. Brown, Inc., v. Weber Implement & Automobile Co., Mo., 260 S.W.2d 751, 756-757. But, even if we might assume that, since Harris' testimony at the first trial was offered at the second......
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Table of Cases
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