Jones v. Lathrop-Moyer Co., 14748.

• Decision Date: 22 June 1934
• Docket Number: No. 14748.,14748.
• Citation: 190 N.E. 883,99 Ind.App. 127
• Parties: JONES v. LATHROP-MOYER CO.
• Court: Indiana Appellate Court

99 Ind.App. 127

190 N.E. 883

JONES

v.LATHROP-MOYER CO.

No. 14748.

Appellate Court of Indiana, in Banc.

June 22, 1934.

Appeal from Superior Court, Marion County; Russell J. Ryan, Judge.

Action by Harry H. Jones, receiver of the Long Auto Sales Company, against the Lathrop-Moyer Company. From an adverse judgment, plaintiff appeals.

Affirmed.

Kane, Blain & Hollowell, of Indianapolis, for appellant.

Smith, Remster, Hornbrook & Smith and John E. Hollett, all of Indianapolis, for appellee.

CURTIS, Judge.

This was an action commenced in the trial court by Harry H. Jones, as receiver of Long Auto Sales Company, against the appellee, Lathrop-Moyer Company, to recover damages to the Long Auto Sales Company by reason of the cancellation of a contract between the Long Auto Sales Company and the appellee.

The appellee, Lathrop-Moyer Company, was a distributer of Oldsmobiles in the city of Indianapolis, and it made a contract with the Long Auto Sales Company to furnish said company Oldsmobiles to be sold in Indianapolis at retail. The Long Auto Sales Company, under the contract, was required to make large expenditures of money in the way of advertising and in rental for a salesroom and in many other ways.

The amended complaint alleges all of these facts, and also alleges that after large sums of money were spent in building up a business and good will for Long Auto Sales Company, the appellee canceled this contract and refused to furnish any more automobiles to the Long Auto Sales Company, and that thereby the business was destroyed and large losses accrued to the Long Auto Sales Company as a result of the cancellation.

The action is not an action ex contractu growing out of the breach of a contract, but it is an action in tort for damages for the alleged wrongful and fraudulent acts of the appellee in canceling the contract.

To the original complaint there was addressed a motion to strike out parts which was overruled. Later an amended complaint was filed to which a motion to separate into paragraphs was filed and overruled, followed by a motion to strike out parts which was overruled. None of these rulings are brought here for review. The appellee, after the above rulings were made, filed a demurrer to the amended complaint for want of sufficient facts which was sustained, to which ruling the appellant excepted and elected to stand upon said ruling and refused to plead further. whereupon the court rendered judgment that the appellant take nothing by his complaint and that the appellee recover the costs. It is from this judgment that this appeal was taken, the only error assigned being that the court erred in its said ruling upon the demurrer to the amended complaint.

The amended complaint is voluminous, and we believe it is not necessary to set it out in full. Its controlling allegations are in substance as follows: That the appellant's principal, Long Auto Sales Company, was a retail dealer in automobiles in the city of Indianapolis and the appellee was the distributer of Oldsmobile automobiles in that territory; that the appellee and said principal entered into a contract which gave the right to said principal to sell Oldsmobile automobiles in the above-mentioned territory; that such a contract was first entered into between said principal and appellee about July 11, 1926, which contract was indeterminate, as to the period it was to continue in effect; that by the terms of this contract the said principal was required to maintain a sales and service room in the city of Indianapolis, to do certain advertising as required by appellee, to purchase special tools and parts to be used in the servicing of such automobiles, and was to make other expenditures in carrying on its business; that this contract was succeeded at the end of the year and on or about August 1, 1927, by another indeterminate contract, and on or about August 1, 1928, this contract was succeeded by another such indeterminate contract; that these several contracts were substantially the same and required the said principal to make known its requirements of automobiles for a year in advance; that the said principal was allotted for the year following the execution of the first contract 120 automobiles which it sold; for the year following the execution of the second contract, 150 automobiles, which it sold; and that for the year following the execution of the third contract, 201 automobiles were allotted to said principal for sale.

The amended complaint further alleges that at or about the time of the execution of the contract of August 1, 1928, the appellee's vice president informed the said principal that it must prepare for a large business for the ensuing year and requested the said principal to procure additional capital for the said business and that the said principal would make profits of about $18,000 for said year; that said principal procured one Bradford, who was willing to supply to said principal all the money necessary to carry on the increased business for the ensuing year, and for the purpose of securing confirmation to the said Bradford of the possibilities of said business caused the said Bradford to confer with the vice president of appellee.

It is also alleged that the appellee was also engaged in retailing Olds motor vehicles in the said territory with a salesroom about nine blocks from said principal's salesroom, and that after the interview between Bradford and the vice president of appellee, the said appellee canceled said contract and made a contract with the said Bradford to sell Olds motor vehicles in said territory with a salesroom distant four miles from appellee's salesroom. The amended complaint further alleges that the cancellation of said contract and the execution of the contract with Bradford and the establishment of his salesroom four miles distant from appellee's salesroom was for the...