Infra-Pak (Dallas), Inc., Cross-Appellee v. Carlson Stapler & Shippers Supply, Inc., Cross-Appellant

803 F.2d 862, 1986 U.S. App. LEXIS 33128
CourtCourt of Appeals for the Fifth Circuit
DecidedNovember 5, 1986
Docket85-1571
StatusPublished
Cited by9 cases

This text of 803 F.2d 862 (Infra-Pak (Dallas), Inc., Cross-Appellee v. Carlson Stapler & Shippers Supply, Inc., Cross-Appellant) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Infra-Pak (Dallas), Inc., Cross-Appellee v. Carlson Stapler & Shippers Supply, Inc., Cross-Appellant, 803 F.2d 862, 1986 U.S. App. LEXIS 33128 (5th Cir. 1986).

Opinions

W. EUGENE DAVIS, Circuit Judge:

Appellant, Infra-Pak, Inc., (Infra Pak) manufactures automatic industrial stretch wrapping machines. Appellee, Carlson Stapler & Shippers Supply, Inc., (Carlson) is a distributor of Infra-Pak machines. In this Texas diversity case, Infra-Pak sued Carlson_for $17,250 due on the purchase price of two wrapping machines. Carlson counterclaimed for a like amount it claimed for assisting Infra-Pak in making an unrelated sale. A jury found Carlson was entitled to only $14,550 as compensation for assisting Infra-Pak and judgment was entered against Carlson for $2,700. Both parties appeal. We find no error and affirm.

I.

Infra-Pak named Carlson a distributor of its wrapping machines. Under the non-exclusive distributorship contract confected between the parties, Carlson was given the right to purchase the wrapping machines for a 15% discount off the list price; Carlson then sold the machines for the full list price to its customers.

In September 1981, Carlson learned that Liberty Glass Company (Liberty) was in the market for an automatic stretch wrapping machine. Carlson sales personnel visited Liberty and attempted to persuade Liberty to purchase an Infra-Pak machine. Following this meeting, Liberty personnel, accompanied by Carlson salesmen, visited InfraPak’s Dallas manufacturing plant.

After Liberty’s visit to Infra-Pak, Carlson sales representatives made follow-up sales calls on Liberty two to four times per month as well as frequent telephone calls. Between January and May 1982, Carlson gave three separate quotes to Liberty for the Infra-Pak Spider Automatic Ten stretch wrapping machine, ranging from $96,000 to $100,000, but Carlson was not able to close the sale.

In September 1982, Liberty contacted Infra-Pak to inquire about a different machine called a Super Spider stretch wrapping machine. Liberty informed Infra-Pak it would make the purchase only from Infra-Pak and not through a distributor. Infra-Pak submitted a $110,000 quote to Liberty for the Super Spider and made a direct sale to Liberty in October 1982. Infra-Pak never informed Carlson of the direct sale.

In November 1982, Carlson purchased two smaller stretch wrapping machines on credit from Infra-Pak for a total of $21,-267.50. After Carlson discovered that Infra-Pak had made the direct sale to Liberty, and had not offered to pay it a commission, Carlson refused to pay Infra-Pak the purchase price of these two machines.

In January 1983, Carlson and Infra-Pak met to attempt to settle the dispute. Carlson claimed it was entitled to a $17,250 commission on Infra-Pak’s direct sale to Liberty. Infra-Pak disagreed. Carlson refused to pay for the two machines it purchased until its commission was paid.

[864]*864Carlson sent Infra-Pak a check for $4,017.50, the difference between the $21,-267.50 purchase price for the two Infra-Pak machines Carlson purchased on credit and the $17,250 Carlson claimed it was owed as a commission on Infra-Pak’s direct sale to Liberty Glass. Infra-Pak negotiated this check and sued Carlson for the $17,250 balance. Carlson filed a counterclaim, claiming that: “[T]he $4,017.50 it paid Infra-Pak was in accord and satisfaction of its entire debt for the two machines; it was entitled to set off the $17,250 as a commission on the Liberty sale.” A jury agreed in principle with Carlson on both counts. It determined that the $4,017.50 Carlson paid Infra-Pak was in full settlement of InfraPak’s claim. It also determined that Carlson was entitled to recover under its quantum meruit counterclaim but fixed the reasonable value of Carlson’s services at $14,-550.

Infra-Pak moved for judgment notwithstanding the verdict. The district court granted this motion with respect to the jury’s finding of an accord and satisfaction, but the court refused to disturb the jury’s finding that Carlson was entitled to $14,550 in quantum meruit compensation. The final judgment required Carlson to pay Infra-Pak $2,700: the difference between the $17,250 remaining due for the two machines Carlson purchased from Infra-Pak and the $14,550 compensation the jury found Carlson earned for its efforts in assisting Infra-Pak in the Liberty sale. On appeal, Infra-Pak contends the district court erred in allowing the jury to consider Carlson’s claim for compensation predicated on a quantum meruit theory because: (1) any services Carlson rendered were covered by the express distributorship contract; (2) Carlson’s sales efforts were not the “producing cause” of the Liberty sale; (3) the jury instructions and interrogatories were improper; and (4) the evidence is insufficient to support quantum meruit recovery. Infra-Pak also contends that the damage award is excessive and the district court erred in calculating pre-judgment interest. Carlson cross-appeals, contending the district court erred in granting JNOV on the accord and satisfaction issue.

II.

A.

Recovery under quantum meruit is premised “on the principle of equity that a party deserves to be paid for the services or materials he furnishes. A person should be compensated for his efforts when an express contract does not provide recovery for the reasonable value of the services rendered and accepted.” Wood v. Texas Farmers Insurance Co., 593 S.W.2d 777, 781 (Tex.Civ.App.1979, no writ) (citation omitted). Texas law precludes quantum meruit recovery, however, if the recovery sought is the subject of an enforceable contract. Woodward v. Southwest States, Inc., 384 S.W.2d 674, 675 (Tex.1964). To determine whether performance of certain tasks is outside the scope of an express contract, Texas courts consider: (1) whether the work was extra; and (2) whether the contract makes provision for the extra work performed. Black Lake Pipe Line Co. v. Union Construction Co., 538 S.W.2d 80, 86 (Tex.1976). Infra-Pak argues that Carlson has failed to satisfy this test because the distributorship agreement expressly provides for the work Carlson performed in connection with the Liberty sale.

We are persuaded that the work Carlson performed was extra work for which the distributorship agreement made no provision. No provision is made that requires or permits Carlson to assist Infra-Pak in making direct sales; similarly, no provision is made for compensation to Carlson for such assistance. The distributorship agreement simply contemplated that Infra-Pak would sell wrapping machines to Carlson at a discount and Carlson would then sell them to its customers at the list price. Infra-Pak points to a provision of the distributorship agreement that requires Carlson to “use its best efforts to promote, market, and sell INFRA PAK products.” Infra-Pak contends this provision addresses the type of services Carlson performed in promoting the Liberty sale. We disagree and inter[865]*865pret this provision as simply requiring Carlson to use its best efforts as a distributor to promote and market machines that it has purchased from Infra-Pak. We agree with the district court that the distributorship agreement did not provide for the services for which Carlson claimed compensation.1

B.

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Bluebook (online)
803 F.2d 862, 1986 U.S. App. LEXIS 33128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/infra-pak-dallas-inc-cross-appellee-v-carlson-stapler-shippers-ca5-1986.