Pick Kwik Food Stores, Inc. v. Tenser

• Decision Date: 10 July 1981
• Docket Number: No. 80-1348,80-1348
• Citation: 407 So.2d 216
• Parties: PICK KWIK FOOD STORES, INC., Appellant, v. James H. TENSER, Appellee.
• Court: Florida District Court of Appeals

Page 216

407 So.2d 216

PICK KWIK FOOD STORES, INC., Appellant, v. James H. TENSER, Appellee.

No. 80-1348.

District Court of Appeal of Florida, Second District.

July 10, 1981.

As Modified on Denial of Rehearing Nov. 18, 1981.

Herbert W. Langford and James Schwartz of Haworth, Langford & Turtzo, Clearwater, and Ross R. Kinney and Ronald E. Klipsch of Quarles & Brady, Milwaukee, Wis., for appellant.

George R. McLain of Harnden, McLain, Spivey & Dart, and Daniel Joy, Sarasota, for appellee.

DANAHY, Judge.

A contract entered into by the parties' respective predecessors in interest is the subject of this lawsuit. The trial judge ruled as a matter of law that appellant was bound by the contract and guilty of breaching it, and a jury awarded appellee the sum of $100,000 in damages for the breach. We reverse.

The original parties to the contract were In & Out Food Stores, Inc., and Petrol Express. In & Out Food Stores leased premises on which it operated a convenience store and the contract gave Petrol Express the right to conduct retail sales of gasoline on the premises. To that end, the contract allowed Petrol Express to install the necessary equipment and machinery for dispensing gasoline at retail, which Petrol Express agreed to do, and prohibited In & Out Food Stores from selling or permitting the sale of any gasoline products other than those provided by Petrol Express. In & Out Food Stores agreed to collect all proceeds from the sale of gasoline and deposit the same in an account in the name of Petrol Express. Net profits were to be divided equally between the parties. Petrol Express commenced a retail sales of gasoline business at the In & Out Food Stores' location pursuant to this arrangement, and it proved to be profitable.

Appellant acquired In & Out Food Stores' leasehold interest and convenience store business several years later. In the meantime, appellee required the rights of Petrol Express under the contract. Following appellant's acquisition of the convenience store, appellee continued to operate the retail gas business at that location. Some thirty months later appellant informed appellee that it did not consider itself bound by the contract and terminated its relationship with appellee. For that alleged breach of contract, the jury awarded appellee an amount representing lost profits plus attorney's fees, the latter being provided in the contract to the party required to bring legal proceedings for its enforcement.

Appellant's first line of defense is that it did not assume or acquire the burden of any obligation under the contract, as a matter of law, by reason of its purchase of In & Out Food Stores' leasehold interest. We need not reach that question because we conclude that the executory features of the contract were void from the beginning for lack of consideration or, as the rule is sometimes expressed, for lack of mutuality.

The contract expressly grants appellee, as successor in interest to Petrol Express, the unrestricted right to remove his equipment and machinery from appellant's premises and terminate the contract at any time. A bilateral contract terminable at the will of one party is not binding, and may be terminated by either party without liability for payment of damages representing lost profits anticipated by the other....