Mangini v. Wolfschmidt, Limited

• Decision Date: 12 May 1961
• Citation: 192 Cal.App.2d 64,13 Cal.Rptr. 503
• Court: California Court of Appeals Court of Appeals
• Parties: Norman J. MANGINI, Plaintiff and Appellant, v. WOLFSCHMIDT, LTD., a Corporation, Joseph E. Seagram & Sons, Inc., a Corporation, Defendants and Respondents. Civ. 25018.

Page 503

13 Cal.Rptr. 503

192 Cal.App.2d 64

Norman J. MANGINI, Plaintiff and Appellant, v. WOLFSCHMIDT, LTD., a Corporation, Joseph E. Seagram & Sons, Inc., a Corporation, Defendants and Respondents.

Civ. 25018.

District Court of Appeal, Second District, Division 1, California.

May 12, 1961.

J. Albert Hutchinson, San Francisco, for appellant.

Lawler, Felix & Hall, John M. Hall, Los Angeles, for respondents.

FOURT, Justice.

This is an appeal from the portions of a judgment which denied relief to plaintiff upon defendant's breaches and repudiation of future performance of an exclusive distributor's contract for the sale and distribution of defendant's products in plaintiff's exclusive territory within the State of California. Sometime after the second trial, Joseph E. Seagram and Sons, Inc., a corporation, was substituted in the place of Wolfschmidt, Limited, a corporation, as the appellant and Joseph E. Seagram and Sons, Inc., a corporation, is now the appellant in this matter.

The second trial with which we are here concerned followed the reversal of certain portions of an earlier judgment. See Mangini v. Wolfschmidt, Ltd., 165 Cal.App.2d 192, 331 P.2d 728.

The opinion in the first appeal sets forth at pages 194-196, 331 P.2d at page 729 the facts and pleadings in the matter as follows:

'Plaintiff is a licensed liquor manufacturer's agent and defendant is a liquor manufacturer and importer. In his complaint plaintiff alleged: that in July, 1954, he and the defendant '* * * entered into an oral contract by the terms of which defendant undertook and agreed to employ, and did employ, plaintiff as its exclusive selling agent * * *' within a described territory in the southern portion of California, and to pay plaintiff as compensation a specified commission; that by the terms of the contract it was further agreed '* * * that plaintiff should become and remain the sole and exclusive selling agent and should have and retain the exclusive right of sale of defendant's said products in said territory as long as plaintiff should continue to use his best efforts to promote and solicit the sale of defendant's products therein; that said oral contract was duly confirmed by defendant in its certain writing dated July 19, 1954 * * *' a copy of which was appended as an exhibit to the complaint and is set out in full in the margin. ¹

'The complaint further alleged that plaintiff fully and faithfully performed the contract until May 31, 1955, but that on May 23, 1955, defendant wrongfully and without excuse or justification breached and repudiated the contract by writing him a letter reading as follows: 'This is to confirm our advice to you that we are discontinuing you as broker for the sale of our products effective May 31st, 1955.'

'By the first cause of action of his complaint, plaintiff seeks recovery of the sum of $15,000 as damages for the 'breaches and repudiation of said contract' and the further sum of $1,675 for unpaid commissions on orders accepted by defendant prior to May 31, 1955. By his second cause of action, plaintiff seeks an accounting from defendant with respect to sales made by defendant on or after May 31, 1955, in 'plaintiff's exclusive territory.' The third cause of action may be disregarded since the portion of the judgment allowing plaintiff compensation for the special services therein alleged is not questioned on this appeal.

'It is to be specially noted that the letter of July 19, 1954, the writing by which, according to the complaint, the oral contract was 'confirmed'--is entirely silent as to the term or duration of plaintiff's employment. Defendant's answer admitted '* * * a contract which was evidenced by the letter * * *' and the trial court found that the parties '* * * entered into a written contract, a true copy of which is annexed to the complaint. * * *''

Plaintiff sought to testify as to certain conversations with Morrell, Wolfschmidt's president, which preceded the writing. Wolfschmidt objected to the testimony upon the ground that it violated the parol evidence rule and the objection was sustained. Extensive offers of proof were made. The court stated at page 198, 331 P. at page 731:

'* * * the controlling question on this aspect of the case is whether it properly can be declared as a matter of law that the instant writing imports on its face to be such a complete expression of the whole agreement as to require exclusion of parol evidence offered to prove an additional contractual provision covering a matter as to which the writing is silent. See 3 Williston, Contracts, p. 1821, § 633 (rev. ed. 1936).

* * *

* * *

"* * * It does not, therefore, render inadmissible proof of contemporaneous oral agreements collateral to, and not inconsistent with, a written contract where the latter is either incomplete or silent on the subject, and the circumstances justify an inference that it was not intended to constitute a final inclusive statement on the transaction. (Crawford v. France, 219 Cal. 439, 443-445, 27 P.2d 645; Weil v. California Bank, 219 Cal. 538, 27 P.2d 904; Van Slyke v. Broadway Ins. Co., 115 Cal. 644, 647, 47 P. 689, 928." American Industrial Sales Corp. v. Airscope, Inc., 44 Cal.2d 393, 397, 282 P.2d 504, 49 A.L.R.2d 1344; Haggerty v. Warner, 115 Cal.App.2d 468, 473, 252 P.2d 373; Zinn v. Ex-Cell-O Corp., 148 Cal.App.2d 56, 73, 306 P.2d 1017.

Further, the court said in 165 Cal.App.2d at page 200, 331 P.2d at page 732:

'The foregoing California precedents, dealing as they do with contracts and factual situations closely similar to those here presented, point definitely to the conclusion that parol evidence should have been admitted for the purpose of ascertaining the intentions of the parties as to the term or duration of the contract at bar. Manifestly the agreement of the parties, express or implied, as to the duration of their relationship must be ascertained and read into the writing before us, because in this respect the written memorial is silent. (Citations.)'

It was pointed out further in 165 Cal.App.2d at page 201, 331 P.2d at page 733:

'* * * Moreover, plaintiff offered evidence tending to prove that the instant contract was based upon considerations 'other than the services to be rendered.'

'It appears that plaintiff agreed not to handle any other line of vodka and that he did later decline another proffered line. Plaintiff offered to testify that the rate of his compensation was fixed at 50 cents a case (instead of $1.00) for the first 500 cases in order to provide compensation for Mr. Jetel, who was assigned to work with plaintiff in his efforts to produce 'fruitful and larger turnovers of our brand in Southern California to our mutual benefit.'

'It is undisputed that the instant contract was modified by a subsequent executed oral agreement by which plaintiff's territory was extended to northern California. Plaintiff testified as follows concerning his negotiations with Mr. Morrell in reference to said modification: '* * * then, I inquired as to the arrangements and he said they would be the same as they are down here, that as long as you did your job down here and up there both that you would go on as long as you did the job.' The parties acted upon this modification. Plaintiff's testimony in reference to its terms could be construed either as an interpretation or as a modification of the original agreement with respect to the matter of its duration. Plaintiff's testimony in this respect was received without objection * * *'

It was ruled in 165 Cal.App.2d on pages 202-203, 331 P.2d at page 734:

'* * * in the final analysis the issue as to the duration of the instant contract is one of fact to be resolved by a consideration of such available evidence as may be reasonably indicative of the intent of the parties, expressed or implied. See J. C. Millett Co. v. Park & Tilford Distillers Corp., supra, D.C., 123 F.Supp. 484 (liquor distributor's contract indefinite as to duration found to be terminable only after a reasonable time and upon reasonable notice); and cf. Long Beach Drug Co. v. United Drug Co., 13 Cal.2d 158, 165, 88 P.2d 698, 702, 89 P.2d 386 (sustaining validity of exclusive agency contract providing for continuance 'so long as plaintiff 'shall perform the terms of this agreement''); Great Western Distillery Products, Inc. v. John A. Wathen Distillery Co., 10 Cal.2d 442, 447, 74 P.2d 745 (sustaining validity of exclusive agency contract providing for continuance 'as long as the plaintiff purchases and continues to purchase * * *'); Ravel v. Hubbard, 112 Cal.App.2d 255, 259, 246 P.2d 88 (holding enforceable a contract providing for duration 'so long as plaintiff was able to perform his portion of the contract') and Noble v. Reid-Avery Co., 89 Cal.App. 75, 264 P. 341 (holding enforceable a contract providing for duration 'as long as they [plaintiffs] were able to give faithful service and a business management to the trade * * *').'

There was also a ruling upon certain depletion provisions of the contract and it was directed that '* * * its meaning should be re-examined in the light of such parol evidence as may be received in aid of its proper interpretation upon a retrial.' Mangini v. Wolfschmidt, Ltd., 165 Cal.App.2d 192 at page 204, 331 P.2d 728, at page 735.

In other words the appellate court judgment directed the trial court to receive the rejected evidence and determine the duration of the contract by such evidence as would indicate the intent of the parties and to ascertain or determine the meaning of 'depletion sales.' It was adjudged in effect that a valid contract had been established excepting for the two elements left undetermined by reason of the parol evidence objection.

The testimony and proof received in the second trial was substantially the same as that offered in the first trial. The defendant offered no evidence from any witness called by it.

The plaintiff testified unequivocally that it was expressly...