Moore v. Berry Refining Co.

• Decision Date: 27 June 1969
• Docket Number: No. 368,368
• Citation: 248 N.E.2d 398,145 Ind.App. 92
• Parties: Doxie MOORE, Appellant, v. BERRY REFINING COMPANY, a Delaware Corporation, Berefco, Inc., an Illinois Corporation, Appellees. A 50.
• Court: Indiana Appellate Court

Page 398

248 N.E.2d 398

145 Ind.App. 92

Doxie MOORE, Appellant, v. BERRY REFINING COMPANY, a Delaware Corporation, Berefco, Inc., an Illinois Corporation, Appellees.

No. 368 A 50.

Appellate Court of Indiana, In Bank.

June 27, 1969.

Rehearing Denied July 23, 1969.

Vance M. Waggoner, Rushville, Robert A. Lucas, Gary, for appellant, Lucas, Clifford & Wildermuth, Gary, of counsel.

Charles G. Bomberger, Hammond, James B. Moran, Chicago, Ill., for appellee, Friedrich, Bomberger, Tweedle & O'Connor, Hammond, Bell, Boyd, Lloyd, Haddad & Burns, Chicago, Ill., of counsel.

SHARP, Judge.

The Appellant, Doxie Moore, brought this action below for damages for breach of an oral contract of employment and for quantum meruit for the reasonable value of services rendered. The Appellant alleged that the Appellees were liable to him for commissions earned for the sale of asphalt during the 'sales year' of 1964--1965. The Appellee contended in part that no contract of employment existed and that therefore no liability could attach by reason of its going out of business and ceasing all operations connected with the production of asphalt.

The Appellant, Doxie Moore, was a commission salesman for Berry Refining Company receiving a variable commission on asphalt delivered by that company. He promoted the sale of asphalt from 1957 to April 1, 1965 during which time, by service, entertainment and favors, he developed personal relationships with a number of contractors. The evidence most favorable to Appellee also reveals that his commissions were paid solely on the basis of asphalt delivered.

In 1965 Berry Refining Company ceased operation for financial reasons and no asphalt was delivered that year. The refinery equipment was sold for scrap and all business ended. The Appellant was paid no commissions during 1965 for this reason and no asphalt was sold and delivered.

Trial was by jury and a verdict for the Appellant in the amount of $49,000 was returned. The Appellees then filed a Motion for New Trial containing numerous specifications of error which stated:

'1. The verdict of the jury is not sustained by sufficient evidence.

'MEMORANDUM

'Plaintiff seeks to recover commissions for sales of defendants' asphalt for the year 1965. His earnings were to be based entirely upon sales commissions with no reimbursement by the defendants for promotional expense. There is no evidence of any implied agreement to pay commissions except upon the completion of sales by delivery of asphalt and there is no evidence of any completed sales of defendants' products by the plaintiff during that year; on the contrary, the uncontradicted evidence is that no specific orders were received by the defendants and no sales or deliveries were made in that year, the defendants having closed their refinery on April 30, 1965, for economic reasons.

'Documentary evidence and oral testimony establish only that sales were anticipated for 1965 in undertermined amounts but none were consumated. There is no evidence upon which to compute commissions or to award damages, except by pure speculation as to what might have been earned by the plaintiff there had been completed sales.

'The only specific dollar evidence related to 1965 is that plaintiff expended $2850.16 in promotional activities with potential customers, but by his own testimony such expense was not reimbursable from the defendants.

'2. The verdict of the jury is contrary to law.

'MEMORANDUM

'(1) It is not sustained by sufficient evidence.

'(2) The jury was permitted to speculate and guess as to what commissions plaintiff might have earned had there been any completed sales in 1965.

'(3) Plaintiff was a commission agent whose agency was terminable at will. Defendants had no obligation to stay in business in order to deliver asphalt and thus enable plaintiff to earn commissions.

'(4) An offer for a unilateral contract may be revoked at any time prior to acceptance (by completing sales) and it was so revoked by the defendants in 1965 when the refinery was closed for economic reasons and plaintiff was so notified.

'3. Error in the assessment of the amount of recovery, in that the amount is too large.

'4. The damages assessed are excessive.

'5. The Court erred in overruling defendants' motion, made at the close of all the evidence, to instruct the jury to return a verdict for the defendants.

'6. Error of law occurring at the trial as follows:

'(a) The Court erred in admitting in evidence, over the objection of the defendants, plaintiff's Exhibit 26, which is a letter to Edward Connelly from J. D. Macdonald, Vice President of Berry Refining Company, stating that asphalt requirements for the 1965 season will be made upon a negotiated price, which objection and the ruling of the Court thereon are in the following words:

'OBJECTION: We object to Plaintiff's Exhibit 26; it is testified this is a confirmation of a sale of asphalt and otherwise it is merely a discussion of what they hoped for in the future, something to negotiate, the price, on the next year, and in no sense is a confirmation of sale.

'RULING: Objection overruled and Plaintiff's Exhibit 26 is allowed and received in evidence.

'(b) The Court erred in admitting in evidence, over the objection of the defendants, plaintiff's Exhibit 25, which is a letter to the plaintiff from Edward C. Levy Company, stating that they expect plaintiff to take care of their asphalt needs in the 1965 season, which objection and the ruling of the Court thereon are in the following words:

'OBJECTION: Same objection, Your Honor. There is no showing of any sale, just an expectation, which might occur the following year.

'For same objection see Specification 6A).

'RULING: Objection overruled and Plaintiff's Exhibit 25 allowed and received in evidence.

'(c) The Court erred in admitting in evidence, over the objection of the defendants, plaintiff's Exhibit 23, which is a notice to bidders from the DeKalb County Highway Engineer for 800,000 gallons or less of emulsified asphalt, which objection and the ruling of the Court thereon are in the following words:

'OBJECTION: Our objection is on the face of it there is no relevancy to the document. It is just a form legal notice from DeKalb County for annual bid on various materials. We have no evidence other than a representation by the Witness that any acceptance of a bid or a bid put in. We certainly have no evidence of a sale during 1965 to DeKalb County.

'RULING: With that explanation, objection overruled and Plaintiff's Exhibit 23 is received and allowed in evidence.

'(d) The Court erred in admitting in evidence, over the objection of the defendants, plaintiff's Exhibit 24, which is a letter to the plaintiff from Charles T. Miser, DeKalb County Highway Engineer, estimating a 1965 increase in the purchase of bituminous materials, which objection and the ruling of the Court thereon are in the following words:

'OBJECTION: Defendants object to this offered exhibit for the reason it is not a confirmation proof of any sale of asphalt. It refers to an anticipation of increase of material to be ordered when purchased in the Year 1965. Nothing specific as to amount, no request for delivery and no price.

'RULING: Objection overruled. Plaintiff's Exhibit 24 allowed and received in evidence.

'(e) The Court erred in admitting in evidence, over the objection of the defendants plaintiff's Exhibit 28, which is a letter to the plaintiff from Mohr Construction Company, Inc. stating he can expect his usual share of asphalt business in 1965, which objection and the ruling of the Court thereon are in the following words:

'OBJECTION: Defendants renew their objection, same as made to 24, namely it does not prove sales, merely expectation of resuming business when he recovered.' (for same objection see Specification 6D)

'RULING: Objection overruled. Plaintiff's Exhibit 28 allowed and received in evidence.

'(f) The Court erred in admitting in evidence, over the objection of the defendants, plaintiff's Exhibit 27, which is a letter from United Black Top Pavers, Inc. to the plaintiff stating that they expect to purchase as much if not more from him in 1965, which objection and the ruling of the Court thereon are in the following words:

'OBJECTION: Same objection, Your Honor, as to 28. The best evidence of the sale is not an expectation letter but a sales order itself.

'RULING: Objection overruled and Plaintiff's Exhibit 27 received and allowed in evidence.

'(g) The Court erred in admitting in evidence, over the objection of the defendants, plaintiff's Exhibit 29, which is a letter from Indiana Highway Materials, Inc. to the plaintiff stating that he could expect a lot of business from them in 1965, which objection and ruling of the Court thereon are in the following words:

'OBJECTION: Same objection as well as additional objection. This is a letter, probably written, according to this date, well after the date when Mr. Moore was notified that the refinery was shutting down.

(For same objection see Specification 6F).

'RULING: Overruled. Plaintiff's Exhibit 29 allowed and received in evidence.

'(h) The Court erred in overruling the objection of defendants to the following question propounded during the direct examination of the plaintiff, a witness called in his own behalf, and in admitting the answer thereto in evidence, which question, objection, answer, and the ruling of the Court thereon, are in the following words:

'QUESTION: Now what is the fact as to whether or not you expended any monies of your own on promotion?

'OBJECTION: It is immaterial because the promotion expense was his own and we are not liable to pay that.

'RULING: Leading up to it. Overruled.

'(i) The Court erred in refusing to give to the jury at the request of the defendants, each of defendants' written and tendered instructions numbered 1, 4, 5, 7, 8, and 10.

'(j) The Court erred in giving to the jury at the request of the plaintiff...