Wells Truckways v. Burch
| Decision Date | 12 September 1957 |
| Docket Number | No. 5557.,5557. |
| Citation | 247 F.2d 194 |
| Parties | WELLS TRUCKWAYS, Ltd., a California corporation, Appellant, v. William A. BURCH, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Francis P. O'Neill, Denver, Colo., (Galligan & Foley, Denver, Colo., were with him on the brief), for appellant.
Harry H. Ruston, Denver, Colo., for appellee.
Before BRATTON, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
This was an action in which appellee William Burch sought to recover damages from Wells Truckways, Ltd., herein called Wells, for breach of contract. The complaint alleged that on August 19, 1954, the parties entered into an agreement whereby Burch was to act as the agent of Wells in operating that certain portion of an interstate Commerce Commission permit held by Wells between Denver, Arizona and California. It was alleged that Wells breached the contract to the damage and detriment of Burch. Recovery was sought of $5,964.29 for monies due at the date of the breach of the contract and damages in the sum of $800,200. Wells filed an answer denying that it had breached the contract, and further alleged that it lawfully terminated the contract and that Burch was estopped and by way of counterclaim asked damages in the sum of $100,000. A jury trial resulted in a verdict and judgment for Burch.
The contract of August 19, 1954, in a preamble stated that Wells was engaged in the truck transportation business; that the furtherance of such operations required the services of Burch to act as agent for the operation of the vehicles between Denver and Pueblo, Colorado, Arizona and California. The contract provided that Burch was to act as such agent for Wells for a period of five years, with the option to renew the agreement for another five years if Wells was still actively engaged in the truck transportation business, and if Othal P. Wells was still the majority stockholder and in control of Wells. It placed the management of all operations pertaining to the movement of perishables over the designated route in Burch. Wells was to furnish all the insurance covering the operations. Burch was required to keep adequate and correct records of the operations of the enterprise.
Paragraph 5 of the contract provided that "If either party furnishes equipment for the movement of merchandise the charge for such equipment shall not exceed 75% of the total revenue for the haul." The net profits were to be divided equally between Wells and Burch. The contract gave each party the right of cancellation for good cause or for the violation of its terms by the other party.
Almost immediately disagreements arose between the parties and on December 1, 1954, a clarification agreement was executed, providing that all revenues received from Bos Truck Lines pursuant to interline shipments originating east of the territory served by Wells should be paid directly to Wells, without accounting to Burch therefor. Disagreements continued and on August 12, 1955, Wells, through its attorney, served notice of cancellation of the contract effective August 3, 1955.
It is contended by Wells that the court erred in failing to enter a judgment of dismissal against Burch and in favor of Wells at the conclusion of plaintiff's case. This presents the question whether Burch violated his obligations under the contract warranting Wells in terminating the contract. This is essentially a fact question which in our view was properly submitted to the jury. Wells charged that Burch breached the contract in that he caused trucks which he procured to haul merchandise to California to deviate from the established routes covered by the permit; that he violated his fiduciary relationship by organizing a separate corporation which purchased trucks and that he then made a contract with his own corporation to employ its trucks in hauling merchandise to California. It was established by evidence that some of the drivers of trucks bypassed the established route, in violation of the provision of the certificate from the Interstate Commerce Commission. But there was also evidence that this was done without the knowledge or consent of Burch and in direct violation of written instructions given by him.
It is further contended that Burch violated his fiduciary responsibility to Wells by renting his own trucks owned by his own corporation to be used in hauling this produce to California. The duties of an agent toward his principal's business are too well recognized to need citation of authority. Of course, he may not profit personally in any way at the expense of his principal and in violation of his trust agreement. He must at all times act in the utmost good faith, honesty and integrity. Under the contract, it was Burch's duty to obtain the trucks to transport this merchandise. There is nothing whatever in the contract which prevented him from using his own trucks, so long as the charges therefor were no more than what other trucks could be hired for. In fact, Paragraph 5 of the contract impliedly authorizes and clearly contemplates the use of equipment belonging to the parties to the contract.1 There is nothing in the record indicating that the charges for the use of Burch's trucks, or trucks in which he had an interest, exceeded 75% of the total revenue for the haul, or that it exceeded what was regularly paid for the hire of outside trucks. Complaint is also made of the use made of trucks by Burch after they reached their destination in California. The trucks, of course, had to return to the place from which they started if they could be used again. Whenever possible, Burch obtained a return load of merchandise. Out of this he made a profit. It is contended that this profit belongs to the enterprise and should have been equally divided between him and Wells. But it is without dispute that Wells had no interest in the trucks after they reached California. Their connection with its business was then at an end. Wells testified that he was interested only in a one way operation and was not interested in what happened to the trucks after reaching California, although admitting that they had to get back to Denver if they were to be used again. Furthermore, by arrangement on Burch's part, Wells received 7½% of the gross revenue of such return loads. Without detailing all the charges and the evidence in the record, we think whether Burch violated his contract in any way or his fiduciary relationship warranting cancellation of the contract by Wells, at most, presented a jury issue which the jury resolved in Burch's favor.
It is contended that all evidence relating to damages was purely...
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...jury returns two inconsistent verdicts, the trial court may resubmit the issue to them for clarification. Wells Truckways, Ltd. v. Burch, 247 F. 2d 194 (10th Cir. 1957). [42] Naturally the court may not coerce the jury, nor should it attempt to change the jury’s findings—but that was not do......
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Chapter 20 - § 20.2 SPECIAL ISSUES
...of Verdict. Until a verdict has been received and recorded, it is not final and is subject to correction. Wells Truckways, Ltd. v. Burch, 247 F.2d 194 (10th Cir. 1957). § 20.2.10—Objections to Form of the Verdict Colorado ➢ Waiver of Objections to Verdict Form. Post-verdict claims of confli......
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