Stern & Co. v. International Harvester Co.

• Court: Connecticut Supreme Court
• Writing for the Court: Before DALY; KING
• Citation: Stern & Co. v. International Harvester Co., 147 A.2d 490, 146 Conn. 42 (Conn. 1958)
• Decision Date: 16 December 1958
• Parties: STERN AND COMPANY, Inc. v. INTERNATIONAL HARVESTER COMPANY. Supreme Court of Errors of Connecticut

Page 490

147 A.2d 490

146 Conn. 42

STERN AND COMPANY, Inc. v. INTERNATIONAL HARVESTER COMPANY.

Supreme Court of Errors of Connecticut.

Dec. 16, 1958.

Irving S. Ribicoff, Hartford, with whom was Louise H. Hunt, Hartford, for appellant (plaintiff).

James W. Carpenter, Hartford, with whom was William E. Glynn, Hartford, for appellee (defendant).

Before DALY, C. J., and BALDWIN, KING, MURPHY and MELLITZ, JJ.

KING, Associate Justice.

The plaintiff and the defendant, late in 1950, entered into a distributorship agreement, under the terms of which the plaintiff was to act as the exclusive distributor of the defendant's refrigeration products in Connecticut, all of Vermont except Bennington County, and certain counties in western Massachusetts. It also provided that the defendant might change the plaintiff's territory from time to time 'by giving notice in writing to the * * * [plaintiff] of such change without otherwise affecting the terms of this agreement and without incurring any liability to the [plaintiff].' Changes in territory had in fact been made during the term of the contract, and in each case written notice had been given the plaintiff. The retail dealers in the territory involved had also been notified by both parties of the change and given information as to whom they should contact with respect to repairs, replacement of parts, warranties, other services and the placement of orders for new products. It is the custom in the trade that both manufacturer and distributor should notify retail dealers of a change in distribution territory, giving the name of the new distributor and the effective date of the change. On October 6, 1953, the defendant, without notice to the plaintiff, entered into a distributorship contract with I. Feldman Company, hereinafter referred to as Feldman, of Providence, for the sale of the defendant's refrigeration products. Included in Feldman's territory were New London and Windham Counties in Connecticut. Feldman immediately sent its salesmen into its territory, including the two counties in Connecticut, and they called on the plaintiff's retail dealers. On October 13, 1953, the plaintiff canceled its entire distributorship agreement with the defendant in accordance with its terms.

The complaint was in three counts. The first count sought damages, generally, for breach of contract. The second sought damages on the ground that the defendant 'instructed, counselled and induced' Feldman to call upon the plaintiff's dealers in the two counties, thereby causing the plaintiff a loss of prestige, good will and sales. The third count sought damages on the ground that the defendant 'knew or should have known that by appointing * * * [Feldman] its distributor * * * [Feldman] would call on plaintiff's dealers * * * and enter into sales activities,' thereby causing the plaintiff a loss of prestige, good will and sales. The answer was a general denial and a special defense alleging the plaintiff's cancellation, on October 13, 1953, of the entire distributorship agreement 'effective within a thirty-day period.'

The court's basic finding was that the plaintiff had failed to prove the amount of any damage proximately resulting from the defendant's failure to give written notice to the plaintiff before the appointment of Feldman as distributor. The plaintiff had at least two main burdens on the issue of compensatory damages. The first was that of proving that it had sustained an injury of a nature within the purview of the allegations of its complaint as a proximate consequence of the defendant's giving Feldman the territory in Windham and New London Counties without advance notice to the plaintiff. The second was that of proving facts from which the court could estimate, with reasonable certainty, the amount, in dollars, of reasonable compensation for that injury. Ball v. T. J. Pardy Construction Co., 108 Conn. 549, 551, 143 A. 855, 63 A.L.R. 139; Hedderman v. Robert Hall of Waterbury, Inc., 145 Conn. 410, 414, 144 A.2d 60; see Goldman v. Feinberg, 130 Conn. 671, 673, 37 A.2d 355; Comstock v. Connecticut Ry. & Lighting Co., 77 Conn. 65, 67, 58 A. 465.

The plaintiff seems to claim that if some substantial injury resulted to the good will of its business as a result of the defendant's failure to give advance notice of the change of territory, it was entitled, as matter of law, to recover substantial damages therefor in whatever amount was indicated by credible evidence. This is not our law. 'He who seeks to recover damages of this nature must [not only] establish a reasonable probability that his injury did bring about a loss * * * [but] must [also] afford a basis for a reasonable estimate by the trier, court or jury, of the amount of that loss. From the very nature of the situation the amount of loss cannot be proved with exactitude, and all that can be required is that the evidence, with such certainty as the nature of the particular case may permit, lay a foundation which will enable the trier to make a fair and reasonable estimate.' Ball v. T. J. Pardy Construction Co., supra; Proto v. Bridgeport Herald Corporation, 136 Conn. 557, 572, 72 A.2d 820. In other words, it is not enough that evidence be offered which could be credited and which, if credited, would suffice under our rule. Proof, not merely evidence, is required, and proof of course includes only evidence actually credited by the trier.

The plaintiff, in its brief, states that the basic question on the appeal is whether the court erred in finding for the...