Stolz-Wicks, Inc. v. Commercial Television Service Co., 12608.

• Decision Date: 27 October 1959
• Docket Number: No. 12608.,12608.
• Citation: 271 F.2d 586
• Parties: STOLZ-WICKS, INC., an Illinois corporation, Plaintiff-Appellee, v. COMMERCIAL TELEVISION SERVICE COMPANY, Inc., an Indiana corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

271 F.2d 586 (1959)

STOLZ-WICKS, INC., an Illinois corporation, Plaintiff-Appellee, v. COMMERCIAL TELEVISION SERVICE COMPANY, Inc., an Indiana corporation, Defendant-Appellant.

No. 12608.

United States Court of Appeals Seventh Circuit.

October 27, 1959.

Edmund A. Schroer, Hammond, Ind., for appellant.

John J. McDonagh, Hammond, Ind., Arthur E. Engelland, Chicago, Ill., for appellee.

Before HASTINGS, Chief Judge, and DUFFY and SCHNACKENBERG, Circuit Judges.

HASTINGS, Chief Judge.

This was an action for a declaratory judgment in which plaintiff sought construction of the terms of a "drawing" leading to the award by it of an Edsel automobile in a business promotion campaign and further sought a judgment returning the automobile to it or in the alternative a recovery of its actual cash value for its conversion.

Plaintiff (appellee), Stolz-Wicks, Inc., is an Illinois corporation engaged in business as a wholesaler of radio and television parts to repairmen in a multi-state operation. In the instant case, plaintiff sold and shipped directly in interstate commerce to defendants, two of its customers, who are citizens of Indiana. Defendants are Commercial T.V., a corporation¹ (appellant), four of its officers, and Ray L. Norris d/b/a Hobby Craft T.V. Jurisdiction is asserted because of diversity of citizenship.

The district court found the facts and stated its conclusions of law on which it rendered judgment for $3,017.96 for plaintiff against defendant, Commercial T.V., from which judgment it is the sole appellant. There was judgment in favor of the remaining defendants.

From the facts as found by the trial court the following transaction occurred: In an effort to stimulate sales, plaintiff conducted an advertising campaign which was to end in a drawing at which a 1958 Edsel automobile was to be presented to the customer holding the winning certificate. Plaintiff's customers were given a coupon with each fifty dollars worth of purchases from it and were entitled to receive one certificate for every ten coupons surrendered to plaintiff. Plaintiff held a dance in Chicago, Illinois, on February 1, 1958, for its customers and their guests; and as the customers entered the dance hall, they deposited their certificates in a box provided for that purpose. The rules of the drawing, as printed on the certificates, required that the holder of the certificate be present at the drawing to be eligible to win. At this time Norris was the holder of one such certificate (No. B 382), and Commercial T.V. had six of them.

Both Norris and Commercial T.V. conducted their businesses in Gary, Indiana. On the day of the drawing, February 1, 1958, Norris was in the shop of Commercial T.V. and asked its president, Cordinas, whether anyone from Commercial T.V. was planning to attend the dance and drawing that night. Cordinas answered in the affirmative. Norris then requested that some one from Commercial T.V. take his certificate and act as his representative at the drawing. (Norris said he was not going and signed his certificate in the name of his business, Hobby Craft T.V.) Norris had been told by one of plaintiff's salesmen, Chandler, that it would be within the contest rules for him to be represented by Commercial T. V.

Norris's certificate No. B 382 was deposited in the box from which the drawing was made by Casbon, the treasurer of Commercial T.V., along with Commercial's six certificates. Casbon was advised by Chandler to do this. Subjada, plaintiff's sales manager, acted as master ing. Certificate No. B 382 belonging to of ceremonies and conducted the draw-Norris was drawn from the box. No complaint is made here as to the manner of the drawing. Norris was not present.

Casbon presented the stub from the winning certificate to Subjada and in response to an inquiry from him said that he was from Hobby Craft T.V. Subjada then gave Casbon the certificate of title to the Edsel, assigned in blank by plaintiff, together with the keys to the car, and Casbon drove the car to Gary. The next day (Sunday) Norris was informed by Cordinas that Hobby Craft T.V. had won the Edsel and told him to come to Commercial T.V. the following day (Monday) to "settle things up." Norris went to Commercial T.V. on Monday but was refused possession of the Edsel. Later, Commercial refused to purchase Norris's equity in the automobile and refused further repeated demands to surrender the car to Norris. About two weeks before trial, Commercial T.V. sold the Edsel for approximately $2,000 and intends to retain the money obtained from the sale.

The trial court further found that the evidence as to whether plaintiff was licensed to do business in Indiana was inconclusive.

In passing, we may say that an examination of the record shows ample support for the findings of fact by the district court, and we hold that they are not clearly erroneous. Rule 52(a), Federal Rules of Civil...