R. F. Baker & Co., Inc. v. P. Ballantine & Sons

Citation127 Conn. 680,20 A.2d 82
PartiesR. F. BAKER & CO., Inc., v. P. BALLANTINE & SONS.
Decision Date08 May 1941
CourtSupreme Court of Connecticut

Appeal from Superior Court, Fairfield County; Patrick B O'Sullivan, Judge.

Action by R. F. Baker & Company, Incorporated, against P. Ballantine & Sons, for breach of contract and value of services rendered, brought to the superior court and tried to the jury. From a decision setting aside a verdict for plaintiff plaintiff appeals.

No error.

Where contract granting exclusive agency for distribution of liquor was terminable at will by agent and was revoked by principal for cause, agent could recover for services only on ground that agent mistakenly believed that contract was terminable only at agent's will, and only to the extent of the value of benefit accruing to principal, after termination of the agency, because of good will created for principal's products, not exceeding amount of agent's expenditures in creating such good will.

Joseph Schwarz, of Danbury, and A. D. Slavitt and Paul J. Grumbly, both of South Norwalk, for appellant (plaintiff).

Herbert L. Emanuelson, of New Haven, for appellee (defendant).

Argued before MALTBIE, C.J., and AVERY, BROWN, JENNINGS, and ELLS JJ.

JENNINGS, Judge.

The plaintiff had the exclusive agency for the products of the defendant in Danbury and vicinity from February to September, 1934. The agency was then revoked. Thereupon the plaintiff brought an action against the defendant, claiming damages for breach of contract in the second count and on a quantum meruit basis in the third. The first count was withdrawn. The jury rendered a general verdict for the plaintiff which the trial court set aside.

The jury could reasonably have found the relationship between the parties to have been as follows, considering the evidence in its aspect most favorable to the plaintiff: Stanhope Healey was state distributor of the defendant's products. When beer became legal in 1933, the plaintiff sought the exclusive agency for those products for Danbury and vicinity. Healey and Baker, representing the plaintiff, had known each other well for many years. They started discussing the proposition late in 1933 and in January, 1934, made on oral arrangement that the defendant would supply the plaintiff with its products on demand and that the plaintiff was to have the exclusive agency for them within its territory. Shortly thereafter the arrangement was modified to give to the plaintiff the right to terminate it at will. The trial court and counsel for both parties have proceeded upon the theory that this was a valid modification, and we shall consider the case upon the same basis. The plaintiff not only sold the products but spent considerable time, energy and money in introducing them to the trade. The agency was revoked by the defendant September 1, 1934. It pleaded various valid reasons for the revocation but the verdict for the plaintiff shows that these issues were found for the latter.

On these facts the trial court held as to the second count that the promise of the plaintiff was illusory, furnished no consideration for that of the defendant and rendered the agreement unenforcible as to its executory features; also that it was too uncertain in its terms to form the basis of a legal contract. The plaintiff claims that its exercise of the agency in accordance with its terms constituted adequate consideration and that the defendant was obliged to continue the agency until it was terminated by the plaintiff, or, for cause, by the defendant.

Many cases are cited by the plaintiff, but it relies principally on our own case of Gurfein v. Werbelovsky, 97 Conn. 703, 118 A. 32. In that case the plaintiff ordered merchandise from the defendant to be shipped within three months and had the option to cancel the order at any time before shipment. The defendant failed to ship the order within the time specified though requested to do so by the plaintiff and the plaintiff brought suit. The defendant claimed that, since the plaintiff had the right of cancellation, there was no contract. This court held the test to be whether the contract was enforcible by the defendant. It held that it was and that shipment before cancellation by the plaintiff would have obligated the latter to pay. Professor Corbin has said of this case: ‘ The contract was bilateral, creating a duty to pay as well as a duty to ship, each promise being the consideration for the other. The ‘ option to cancel’ possessed by the buyer meant that he had the legal power of extinguishing the mutual duties. This power would die instantly upon shipment by the defendant.' 32 Yale L.J. 496. Here there was no obligation on the part of the plaintiff to take any of the defendant's products whatever. Failure to do so would doubtless have justified the cancellation of the agency for cause but would not have supported an action for damages. As was stated in the Gurfein case, supra, 97 Conn. 705, 118 A. 32, quoting from Ellis v. Dodge Bros., D.C., 237 F. 860, 867, ‘ To agree to do something and reserve the right to cancel the agreement at will is no agreement at all.’ See also cases cited in the Gurfein case, 97 Conn. at page 707, 118 A. 32, and Best Co. v. Goldstein, 124 Conn. 597, 602, 1 A.2d 140; 1 Williston, Contracts, Revised Ed., § 105; 34 Yale L.J. 571, 573; Restatement, 1 Contracts, § 79(b, 1); 1 Page, Contracts, 2d Ed., § 572.

The element lacking in the cases cited by the plaintiff and present in those cited by the...

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1 cases
  • R. F. Baker & Co., Inc. v. P. Ballantine & Sons
    • United States
    • Supreme Court of Connecticut
    • May 8, 1941
    ... 20 A.2d 82127 Conn. 680 R. F. BAKER & CO., Inc. v. P. BALLANTINE & SONS. Supreme Court of Errors of Connecticut. May 8, 1941. 20 A.2d 82 Appeal from Superior Court, Fairfield County; Patrick B. O'Sullivan, Judge. Action by R. F. Baker & Company, Incorporated, against P. Ballantine & Sons, ......

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