Wilkinson v. Powe

• Decision Date: 05 January 1942
• Docket Number: No. 96.,96.
• Parties: WILKINSON v. POWE et al.
• Court: Michigan Supreme Court

300 Mich. 275

1 N.W.2d 539

WILKINSON

v.POWE et al.

No. 96.

Supreme Court of Michigan.

Jan. 5, 1942.

Action by Jay D. Wilkinson against Tefance M. Powe and another, individually and doing business as Shamrock Creamery, to recover damages for wrongfully procuring a breach of plaintiff's contracts with certain farmers to haul their milk. From a judgment of no cause of action, entered notwithstanding the verdict in favor of plaintiff, plaintiff appeals.

Order for entry of judgment notwithstanding the verdict vacated, and cause remanded for entry of judgment upon the verdict.Appeal from Circuit Court, Oakland County; George B. hartrick, judge.

Argued before the Entire Bench.

Walter M. Nelson, of Detroit, for appellant.

Wm. H. Wilmot, of Pontiac (Robert D. Heitsch, of Pontiac, of counsel), for appellees.

BUSHNELL, Justice.

Plaintiff Jay D. Wilkinson brought this action against defendants Powe and Stinson, individually and doing business as Shamrock Creamery, charging them with wrongfully procuring a breach of plaintiff's contract with certain farmers to haul their milk.

In 1932 plaintiff and his father, David Wilkinson, began to haul milk for farmers to the Oakland Creamery and built up their first milk route. Later, they ceased to deliver milk to the Oakland Creamery and began to deliver to the Shamrock Creamery. The Wilkinsons developed a second milk route in 1934 or 1935. A written agreement covering the year 1937 was entered into between the Wilkinsons and the farmers on their milk routes in December of 1936. The Wilkinsons agreed to haul milk to Pontiac creameries and the farmers agreed to pay them 25 cents per hundred. Prior to 1937, the arrangement between the Wilkinsons and the farmers was not evidenced by a written contract. The principal and heavier route was 97 miles and the other 94 miles. In April of 1937, David H. Wilkinson assigned all of his interest in the milk routes to plaintiff Jay D. Wilkinson.

Shortly after the execution of the written agreement, defendant Powe told the Wilkinsons that he wanted to take over the larger route and offered in exchange for the route the trade-in value of plaintiff's old truck, and told plaintiff he would give him a job in the creamery. Plaintiff then informed Powe of the existence of the written contract and refused to give up the route. About three months later Powe informed plaintiff that he would be required to replace the open stake racks on his trucks with insulated bodies because of a municipal ordinance. After plaintiff made this change in his trucks, he was unable to get his trucks into the creamery and the milk had to be handled by hand. This led to friction between the parties.

On May 29, 1937, defendant Powe sent a letter to the farmers doing business with plaintiff, worded as follows:

‘For reasons which are vital to our business, we the Shamrock Creamery, have decided that on and after June 1st, we will purchase no milk except that which is picked up by our own trucks at the farm.

‘Nothing on your part has occasioned or made necessary this change, and we are hopeful that you will continue to sell us your milk. Pursuant to the change made, our trucks will call at your place Tuesday afternoon, June 1st, to pick up your milk, if you desire to continue business with us.

‘Trusting that our business relationship may continue and be of mutual benefit, I am,

‘Yours very truly

‘(Signed) T. M. Powe

‘Shamrock Creamery.'

The particular season of the year in which the letter was written was described by a witness as being the ‘lush’ season for milk when the available supply is about double that of other months of the year. This letter resulted in a meeting of some of the farmers to consider the situation. As a result of the request made by some of these farmers at the meeting defendants sent out a notice dated June 1, 1937, reading: ‘We have agreed to let Jay D. Wilkinson's trucks continue to haul the milk they have been hauling to our milk plant for the first ten (10) days of June, 1937. Disregard the notices you received today May 31 until June 11th.'

On June 10th, Powe wrote a letter to Wilkinson in which he said:

‘We have caused to be served on all farmers affected by the same a duplicate of the attached letter, due to a verbal agreement made in consideration of the wish of some of those affected the date stated was extended to June 11, 1937.

‘Since we understand that you have a contract of some nature with many of the farmers in question we are enclosing a copy of said letter, so that you may govern yourself accordingly.'

Wilkinson was unable to find another suitable market for milk after June 10th and was soon forced to abandon his routes. Defendants have since hauled the milk of practically all the farmers formerly under contract with plaintiff.

Plaintiff alleged in his declaration that defendants' object was to prevent him from protecting the farmers on his routes from false, fraudulent, and dishonest practices in the testing, weighing and price paid for milk. This was denied by defendants. They claimed their reason for deciding to haul the milk was that plaintiff failed to deliver the milk on time or in a proper condition, and that the action was taken to protect themselves and their customers by insuring a steady supply of good cream and wholesome milk. The testimony is in conflict on this point; but since the jury found for plaintiff, it must be assumed that they resolved this question against the defendants.

Plaintiff claimed damages in the sum of $5,000, and testified that each of his routes had a value of $2,000. The jury returned a verdict in the sum of $4,000. On a former trial by jury, a verdict of $5,000 was rendered and judgment entered thereon. Subsequently a new trial was granted. On this, the second trial, decision on a motion for directed verdict having been reserved, the trial judge entered a judgment for no cause of action.

In a written opinion the court observed that Morgan v. Andrews, 107 Mich. 33, 64 N.W. 869, is authority for the proposition that an action for damages lies against one who is not a party to a contract but who wrongfully induces a breach or termination thereof, and stated that the acts of defendants, ‘In order to cause liability, must have been over and above and other than mere refusal to accept milk hauled by the plaintiffs.’ The court also observed that in Morgan v. Andrews, ‘the only Michigan case on the subject, the act there rendered (which created) liability was the malicious falsehood and deceit of the defendant in inducing the purchaser to reject the machine which he would otherwise have accepted.'

The court stated that ‘the case at bar does not permit of any speculation on the element of falsehood or deceit which would amount to fraud, leaving then only for considerationwhether or not the action of the defendant could be construed factually as the application wrongfully of pressure and force.’ Citing Angle v. Chicago, etc., Railroad Co., 151 U.S. 1, 14 S.Ct. 240, 38 L.Ed. 55, and Bitterman v. Louisville & N. Railroad Co., 207 U.S. 205, 28 S.Ct. 91, 52 L.Ed. 171,12 Ann.Cas. 693.

The crux of the court's opinion is expressed as follows: ‘A factual situation justifying the submission of the issue to a jury for the assessment of the damages is not present. The jury verdict must be predicated upon a circumstance which does not take into consideration the defendants' right to discontinue its source of supply at any time. To find for the plaintiff is a sympathetic attempt to give legal security to one, who, in a precarious position acted unwisely. * * * Without their acceptance (defendants) of the product the routes had no value. Lawful action, not unlawful action, then eliminated any value the routes may have had.'

If the trial court is to be sustained, the judgment must stand on one of two grounds; first, that, in procuring the breach of contract, defendants were exercising what is often designated as a ‘superior’ or ‘absolute’ right, i. e., to refuse to accept further delivery of milk from plaintiff and, therefore, no justification was necessary; or...