Rosen v. Alside, Inc.

Decision Date14 April 1952
Docket NumberNo. 42447,No. 1,42447,1
Citation248 S.W.2d 638
PartiesROSEN et al. v. ALSIDE, Inc., et al
CourtMissouri Supreme Court

Jerome B. Stone, Kansas City, for appellant Alside, Inc.

Harold Waxman, Kansas City, Hanna, Hurwitz, Goodman, Stone & Taxman, Kansas City, of counsel, for appellant Sidney M. Mann.

James P. Aylward, George V. Aylward, and Terence M. O'Brien, all of Kansas City, William B. Teasdale, James P. Aylward, Jr., Kansas City, of counsel, for respondents.

VAN OSDOL, Commissioner.

This action was instituted by plaintiffs, Julius Rosen and Loyd K. Parks, individually, and The Guaranteed Roofing and Siding Company, a corporation, against defendants Alside, Inc., a corporation (hereinafter sometimes referred to as 'Alside'), and Sidney Mann, an individual, doing business as Home Improvement Company. Plaintiffs' petition declared for $15,000 damages alleged to have been sustained by plaintiffs by reason of a conspiracy to breach an alleged oral contract under which, plaintiffs alleged, they were to become the exclusive dealers in Alside products, principally Alside aluminum siding, in Missouri and Kansas.

The oral contract was stated to have been entered into between defendant Alside and plaintiffs, Rosen and Parks as individuals then doing business as the Guaranteed Roofing and Siding Company. The Guaranteed Roofing and Siding Company was incorporated July 1, 1948, and was alleged to have continued operation under the agreement with Alside's approval. Plaintiffs averred they had duly performed all the conditions of the contract on their part to be performed and had expended large sums in advertising and in training men to handle and sell Alside materials, but that defendant Alside wholly failed to perform its part of the agreement; and that Alside had conspired with defendant Mann to take over from plaintiffs the exclusive dealership, promotion and sale of the Alside product.

Defendants filed separate answers denying the allegations of plaintiffs' petition, and pleaded the Statute of Frauds. Defendant Alside by counterclaim sought the recovery of $272.80 alleged to be the balance due for materials delivered to plaintiffs at their request. A jury found the issues for plaintiffs upon their stated claim, and assessed damages for $13,000; and the jury found for defendant Alside on its counterclaim for $272.80. Defendants have appealed from the judgment for plaintiffs. Plaintiffs have not perfected their appeal from the judgment for defendant Alside.

Defendants-appellants contend the trial court erred in refusing to sustain their motions for a directed verdict. It is urged plaintiffs declared on an express contract, and were erroneously permitted to recover on a theory of quantum meruit; the terms of the alleged contract were indefinite, uncertain, and hence unenforceable; the contract is void for want of mutuality, and is within the purview of the Statute of Frauds; there was no evidence of a conspiracy; plaintiffs committed substantial breaches of the contract and failed to perform the terms and conditions thereof on their part to be performed; and plaintiffs' evidence affords no basis for any award of damages. Defendants-appellants further contend that the trial court erred in the admission of evidence, and in the giving of instructions; and that the verdict was excessive and based on the bias and prejudice of the jury.

In view of our opinion, infra, of the failure of plaintiffs to establish their right of recovery, we shall assume, although we do not decide, that the alleged contract was in its inception in all respects valid and enforceable.

There was evidence introduced tending to show that plaintiffs Rosen and Parks had been partners doing business as The Guaranteed Roofing and Siding Company since 1947 in Kansas City, Missouri. April 4, 1948, after some correspondence following the receipt of a form letter, dated March 2, 1948, which had been circulated by Alside to dealers in building materials in Kansas City, plaintiffs Rosen and Parks went to Akron, Ohio, and interviewed Jerome Kaufman and Lou Manes, respectively president and vice-president of Alside. Having observed examples of the use of Alside siding in the building industry at Akron, plaintiffs Rosen and Parks sought to secure a written contract for the exclusive distribution of the Alside product in the states of Missouri and Kansas. Since the agreement alleged to have been entered into was verbal, we will quote freely from the record the testimony of plaintiff Rosen stating the conversation in Akron with the president of Alside, upon which conversation plaintiffs rely as establishing the terms of the alleged agreement,

'* * * We asked them what they had in mind, whether it was a distributorship or dealership, and they told us they would rather have a dealer here (Kansas City), and I asked them if they planned to give us a written contract if we were able to come to terms. They remarked that the only basis they could give us a written contract was that we take 1,000 square of material a week. (A square in the building-material industry is 100 square feet.) * * *

'Mr. Kaufman told me that, 'Now, in order to give you a written contract I would have to give it to you on a basis of 1,000 square of material a week, which is * * * I believe you will agree that it is more, probably, than you can handle at this time, not knowing any more about the product and not having tried it in your area, but we do want to introduce it out there.' And I replied to that answer * * * to the effect that, 'Well, now, if we take your product out here, there will be some necessary advertising to it. Now, what do you do in the way of advertising?' and Mr. Kaufman told me that due to the price they were furnishing the merchandise at they could not offer anything in the way of help to help us pay for advertising, but he agreed that advertising was definitely necessary.

'I, in turn, wanted to know, 'If we advertise your product, Mr. Kaufman, what will be our protection to help us reap the harvest of what we do build up on this particular product?' and Mr. Kaufman said that, 'We will give you protection in your area,' that 'if you will go along with us and introduce this product and show us that you are doing a nice job with it,' he said, 'we will give you protection.'

'I asked him to qualify his statement of 'doing a nice job,' and he volunteered the information to me that in some areas they found it was harder to introduce due to the fact that it was a much higher priced material than had formerly been on the market in the siding field--that is, speaking in general terms--and in some areas it took hold rapidly; others it was more slowly.

'He suggested, and his definite words were that, 'If you will move as much as 100 square a month for the first year, that would possibly be a good showing.' We discussed with Mr. Kaufman, also, the terms of amounts of material to be purchased. He told us that he was quoting a price on the basis of truckload lots, and that price pertained to truckload lots, and that we would be expected to buy in that quantity. We even discussed at the time that we would not guarantee any particular amount because we didn't know just what the product would do, but I pinned Mr. Kaufman down to this statement after I found I definitely couldn't get a written contract.

'We were interested in their product from our standpoint. He told us, volunteered the fact, that he wanted a dealer out here, and so I asked him if we had his definite promise as to the fact that if we expolit this product, bring it out here and advertise it, that 'you will give us that protection?' and we discussed from that point the consideration of what might terminate our contract or our agreement together, and he volunteered the fact that 'as long as you are doing all right with this product, we will boost you and help you, and we won't interfere with you,' you I wasn't quite satisfied with that particular statement. I wanted something a little more definite because I could see where it would involve some money, and I asked Mr. Kaufman just what he meant by he 'would go along with' us and boost us and help us, and he finally made the statement to me that 'Before we set up any other dealer in your area we will come to you and discuss it with you if we decide you are not doing the job we feel you should be doing. We will discuss it with you before we make any changes, before we set up any other dealer.' * * *

'In reference to the financial problems, we got along to the point where we were going to make this initial order, and he told us we would be operating on a thirty-day basis. However, this initial--it was the spring of the year--he asked us if we could pay cash for the first order and from that point on, to give them time to investigate our record, and we would be put on a thirty-day basis from that time on.'

Upon their return to Kansas City, Missouri, plaintiffs incurred additional operating expenses by employing salesmen; and they began the training of applicators, and avertised the Alside product. One of plaintiffs' salesmen, Balmer, devoted his time exclusively to the sale of Alside siding. Balmer testified that he 'ran into' interference with his sales of the siding in Kansas City in August 1948, and in January 1949; and in Pittsburg, Kansas, in September and October 1948. His informants 'didn't know * * * what company had been around to see them.' A witness, Mrs. Rinehart, testified a salesman representing defendant Mann had solicited her concerning Alside siding. She did not then know 'there were two companies.' She had been interviewed by Balmer, and asked defendant Mann's salesman 'where the other fellow was. He told me he was sick.' This was in January 1949. Balmer 'sold' between twenty and twenty-five jobs while he worked for plaintiffs. He ceased his efforts when he learned from plaintiffs that they 'no...

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