Tile-Craft Products Co., Inc. v. Exxon Corp.

• Decision Date: 17 April 1979
• Docket Number: No. 40601,TILE-CRAFT,40601
• Citation: 581 S.W.2d 886
• Parties: PRODUCTS CO., INC., Plaintiff-Appellant, v. EXXON CORPORATION, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 886

581 S.W.2d 886

TILE-CRAFT PRODUCTS CO., INC., Plaintiff-Appellant, v.EXXON CORPORATION, Defendant-Respondent.

No. 40601.

Missouri Court of Appeals, Eastern District.

April 17, 1979.

Richard B. Dempsey, David L. Baylard, Shifrin, Treiman, Dempsey & Ulrich, St. Louis, for plaintiff-appellant.

Lon Hocker, Jr., and Edward K. Fehlig, Ziercher, Hocker, Tzinberg, Human & Michenfelder, Clayton, for defendant-respondent.

GUNN, Judge.

An alleged breach of distributorship contract by defendant-respondentExxon Corporation gave rise to a three count cause of action by plaintiff-appellantTile-Craft Products Co., Inc. Tile-Craft's first count charged that Exxon failed to give reasonable notice of its termination of the distributorship agreement.The second count charged Exxon with an unlawful conspiracy to take over Tile-Craft's business territory.The third count charged Exxon with breach of contract in failing to give 120 days written notice of termination according to the terms of the distributorship agreement.At trial Tile-Craft dismissed its first count relating to reasonable notice of termination.The jury returned a defendant's verdict in favor of Exxon on the second (conspiracy) count.A jury verdict for $3,600 was rendered for Tile-Craft on the third (breach of contract) count.Tile-Craft appeals only the judgment on the third count alleging trial court error in denying its motion for new trial based on inadequacy of damages.This appeal, then, relates only to Tile-Craft's count three for breach of contract for failing to give contractual notice of termination of the distributorship agreement.We affirm.

On February 16, 1970, Tile-Craft and Exxon ¹ entered into a contract by which Tile-Craft agreed to become a distributor for Nevamar, a plastic laminate product used for the construction of cabinets and counter tops.²Pursuant to the contract Tile-Craft purchased approximately $60,000 worth of Nevamar from Exxon each year during the four year period of distributorship.Tile-Craft estimated its annual average net profit from the Nevamar sales to be $17,000.Exxon estimated Tile-Craft's profits to be $570 per year.

In December, 1973 Tile-Craft advised Exxon of a proposed move to another location in the St. Louis Metropolitan area which would entail expenses in moving materials related to the Nevamar promotion such as display racks.On February 23, 1974, after the move was made, Exxon orally advised Tile-Craft of its intention to terminate the distributorship contract and open its own factory warehouse for distribution.The distribution contract between the parties required 120 days written notice for the termination of the distributorship by either party.Within a month after the oral notice of termination Exxon commenced its own distributorship, but Tile-Craft continued to make its purchases of Nevamar products.According to Exxon, Tile-Craft was able to continue to purchase Nevamar at the distributor's price level or less.And even Tile-Craft acknowledged that it experienced no problems in securing Nevamar from Exxon; that the only change of conditions was that it was required to pay cash for the items purchased and in a conflict of testimony with Exxon to be resolved by the jury that the prices were somewhat higher.Exxon's reason for demanding cash was that it had experienced a "slow payment" problem with Tile-Craft when it was a distributor and had thus decided to transact business on a cash basis.When the distributorship was terminated Exxon accepted the return of that portion of the Nevamar inventory that met the return specifications of the distributorship agreement.After the distributorship termination Tile-Craft acquired a competing line of laminated products which was ultimately abandoned as being unprofitable.

Tile-Craft's theory of damages as related to the jury was for Exxon's failure to provide 120 days written notice of its intent to terminate the distributorship as was required by the terms of the agreement.Damages sought by Tile-Craft included losses on the Nevamar inventory which was not accepted for return, costs of moving, rebuilding and destroying Nevamar display racks and lost profits, including losses sustained in handling the competing line of laminated products.

The foundation of our opinion is grounded on some rather fundamental legal rubric.When the trial court has approved a verdict following a claim of inadequacy of damages and has overruled a party's motion for a new trial, our inquiry on appeal is limited to a determination of whether there was substantial evidence to support the verdict and whether the trial court abused its discretion in denying the motion.Crabtree v. Reed, 494 S.W.2d 42(Mo.1973);Long v. Hooker, 443 S.W.2d 178(Mo.1969).Accordingly, we must consider the evidence in the light most favorable to the verdict, keeping in mind that the credibility, weight and value of the testimony is a matter for the jury.Long v. Hooker, supra;Nichols v. Blake, 395 S.W.2d 136(Mo.1965);Cohen v. Archibald Plumbing & Heating Co., 555 S.W.2d 676(Mo.App.1977);Wells v. Bellman, 531 S.W.2d 770(Mo.App.1975).The jury's assessment of damages is conclusive unless the verdict is so shockingly meager as to indicate that it resulted from the arbitrary or prejudiced exercise of discretion.Nichols v. Blake, supra;Pinkston v. McClanahan, 350 S.W.2d 724(Mo.1961);Ford v. Long, 514 S.W.2d 378(Mo.App.1974).If a jury finds the issues in favor of liability, it must award damages commensurate with the nature and extent of the injuries.Pinkston v. McClanahan, supra.Here, based on its theory of the case, Tile-Craft is entitled only to those damages which arise as the proximate result of Exxon's failure to give 120 days written notice of its desire to terminate the distributorship.It is our opinion that no damages accrued.But as Exxon does not challenge the $3,600 damages verdict on appeal, the issue...