Terre Haute Brewing Co. v. Dwyer, 11763.
| Decision Date | 12 December 1940 |
| Docket Number | No. 11763.,11763. |
| Parties | TERRE HAUTE BREWING CO., Inc., v. DWYER et al. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John C. Vogel, of St. Louis, Mo., for appellant.
Paul Dillon, of St. Louis, Mo., for appellees.
Before SANBORN and THOMAS, Circuit Judges, and DEWEY, District Judge.
This is an appeal from a judgment on a verdict for alleged breach of contract. The written contract, which it is alleged was breached, was entered into between these parties on the 20th day of August, 1935, and provided, in part, that the Terre Haute Brewing Company, Inc., would take care of all licenses, maintain an adequate warehouse and provide facilities and deliver beer sold by the parties of the second part, W. H. Alston and Timothy J. Dwyer; and maintain proper books and accounts for the purpose of operation of said brewery branch, all at the expense of the Brewing Company.
The parties of the second part to sell to the retail trade in St. Louis and vicinity Champagne Velvet Beer, full strength, at $1.75 a case; that they would receive a commission of 20 cents per case, and 25 cents per case commission if sales exceeded 10,000 cases in any given month. Sales were to be for cash, except to hotels, which might be on a monthly payment basis. Parties of the second part to have the exclusive right to sell the products of this Brewing Company in and about St. Louis from September 1st, 1935, to January 1st, 1936; but if the sales did not average 7,500 cases per month during this period, then the party of the first part had the right to cancel the contract on 30 days' notice.
Paragraph 11 of the contract provided as follows: "It is further contracted and agreed that parties of the second part shall have the right, and an option is hereby given them, to purchase from the Terre Haute Brewing Company, Inc., any time after January 1, 1936, provided this contract is in force at that time, the assets, licenses and business of said brewery branch for a sum in amount equal to the original investment made therein by the Terre Haute Brewing Company, Inc."
Parties of the second part in the event of a purchase of said brewery branch to assume all contracts of the Brewing Company for equipment, leases, etc., and in the event there was a loss to the Brewing Company in operating this branch business at St. Louis from the first day of June, 1935, up to and until the option was exercised the amount of loss should be added to the purchase price above mentioned.
In the event parties of the second part purchased the business and equipment they should have a right to purchase Champagne Velvet Beer for a price of $1.15 per case, f. o. b. St. Louis.
Appellees, plaintiffs below, had started selling beer for this brewing company about the middle of April, 1935, and had taken over from some agents who had not been very successful. The Brewing Company in conformity with their contract procured licenses, an adequate warehouse, provided an office therein and employed a manager and bookkeeper and maintained a supply of Champagne Velvet Beer in the warehouse. They also provided three trucks which delivered regularly and an additional one when needed for week-ends. The Brewing Company paid all the costs of maintenance of the warehouse, deliveries and books. The sales were made for cash, generally collected by the person making the deliveries. All cash was turned over to the Brewing Company and the commissions were paid at the end of each week by the agent in charge of the distribution plant. By the middle of September appellees had 550 to 650 regular customers and sold the following cases of beer:
Cases
Month Sold
May and June ...... 3363
July .............. 7832
August ............ 9927
September ......... 8097
October ........... 2771
November .......... 2972
December and
January ........... none
The appellees continued as active agents in the sale of this beer until June 1936 when the contract was terminated by the Brewing Company.
In the latter part of September 1935 there was received in the distributing plant and sold by appellees a shipment of bad beer and there was evidence to the effect that this caused a loss of 60 per cent. of appellees' business by the middle of November, and, although the appellees worked as diligently as before, they could not overcome the injury done to their business by the sale of this bad beer, and after October 1935 their earnings did not exceed the drawing account of $250 per month allowed by the contract when the commissions did not earn that amount.
The court in its instruction succinctly set out plaintiffs' claim as follows:
Appellant made a motion at the conclusion of all the evidence for a directed verdict in its favor on the ground that the amended petition, in...
To continue reading
Request your trial
-
Liles v. Associated Transports
... ... Co., 170 Mo.App. 642, 157 S.W. 106; Terre Haute Brew ... Co. v. Dwyer, 116 F.2d 239. (11) There is ... ...
-
Baldwin v. Desgranges
... ... facts of equivalent import are shown. Terre Haute Brewing ... Co. v. Dwyer, 116 F.2d 239. (20) ... ...
-
Community Blood Bank of Kansas City Area, Inc. v. FTC
...payments are taken into account.10 Rubber Co. v. Goodyear, 9 Wall. 788, 76 U.S. 788, 804, 19 L.Ed. 566 (1869); Terre Haute Brewing Co. v. Dwyer, 116 F.2d 239, 242 (8th Cir. 1940); Fechteler v. Palm Bros. & Co., 133 F. 462, 469 (6th Cir. 1904); Maddox v. International Paper Co., 47 F.Supp. 8......
-
Sidney Smith, Inc. v. Steinberg
...is the benefit of or the advantage remaining after all costs, charges and expenses have been deducted from income. Terre Haute Brewing Co. v. Dwyer, 8 Cir., 116 F.2d 239, 242. The evidence shows that during the operation of the business defendant accumulated a list of customers; that in mak......