DONOVAN, District Judge.
Plaintiff commenced action on an account stated. Defendants counterclaimed for breach of contract1 and the only fact issues submitted to the jury had to do with the parol contract relied on by defendants. The jury returned a verdict for plaintiff. The matter is now before the Court on defendants’ motion- for a new trial.
The record is replete with contradictions in the testimony of the parties. It appears from the testimony of defendant [221]*221Irving E. Schechter that he was the only active defendant and the principal witness testifying to establish the contract pleaded in the counterclaim. His testimony describes how he had been in the bottling and beverage business for a long time prior to his contacts with plaintiff. He portrays himself to be an able, go-getting type of businessman and salesman wherever he operated, whether independently or under franchise for others. He became acquainted with Philip C. Engel (plaintiff’s representative in Minnesota since July, 1952) in 1946, when the latter applied for employment with defendants. Following Engel’s appointment as plaintiff’s representative, and in October, 1952, Schechter continues, he was contacted by Engel in the latter’s capacity as plaintiff’s agent or sales manager and was invited by Engel to take on plaintiff’s products as “exclusive distributor.” Schechter told Engel he was “not interested” unless the proposed arrangement was in “writing.” Thereupon, Schechter testified, Engel responded that he would take defendants’ request for a written agreement “up with our president.” A week later, Schechter said Engel returned with samples and prices. Freight haulage and territory were discussed. Schechter again asked for a written contract for “long duration”, which he says was agreed to be “as long as the brewery was in business.” Emphasizing what he said to Engel, Schechter testified, “I said ‘under no circumstances would I take it [the distributorship] on without a written agreement.’ ” He [Engel] said, “We will give it to you in writing.” That thereupon, without the written contract, Schechter gave Engel the first order for a load of plaintiff’s beer, which was received on November 3, 1952.
Schechter went on to testify that his firm had their own trucks and salesmen, augmented by additions to haul plaintiff’s products from its plant in Wisconsin to defendants’ warehouse in St. Paul, Minnesota. Schechter testified that, from time to time he would inquire of plaintiff’s president about the absence of a written contract2, as for instance he says that on December 15, 1952, “I inquired about a written agreement” and president Cole answered, “They are getting it ready”; that this sort of inquiry and character of answer went on until June 9, 1953, when Schechter ordered Engel to “get my agreement.” On the last date Schechter testified that, following receipt of Exhibit “H” (an order from National Tea Company of Hopkins, Minnesota), he telephoned plaintiff’s president to “get the beer to me * * * assuring him [Cole] I would take 50,000 cases a year”, and that thereupon Cole said, “You get that order and I will fill it.” Schechter then said to Cole, “Where is my agreement?” and Cole answered, “Don’t worry, I am the president” of Kingsbury Breweries Company, and that it would be mailed to Schechter. This is denied by Cole.
Schechter testified that his arrangement with plaintiff was “to pay load to load”, but that he always paid when billed, rather than on the basis of load to load. Plaintiff’s exhibits (statements and letters to defendants) show defendants’ credit to be lapsed by past due billing. Disagreement between plaintiff and defendants was obviously in the making.
In the summer (August) of 1954, Schechter was pressing Engel for cooperation in getting him more territory and for the elimination of a competing distributor. Schechter testified Engel initiated steps to remove the competing [222]*222distributor, one Willard J. Chew, and Schechter advanced Engel $200 for vacation purposes. Upon Engel’s return from a vacation Schechter drove to plaintiff’s Wisconsin plant with him for the purpose of clarifying the distributorship, without avail. Following this, said Schechter, Cole, on September 1, 1954, made a personal call at “my office” whereupon Schechter said, “Where is my agreement?” and Cole replied, “You got an agreement. How about a check? [on a past due account].” Schechter gave Cole a check for a substantial amount. Later, in September, 1954, Cole telephoned, saying, “No more beer for you. You are no longer a distributor.” 3
The foregoing is the substance of defendants’ case on the issue of the contract in suit.
Plaintiff’s president, corroborated by Engel, denied a contract was entered into.
Defendants contend they have carried their burden of proof, intended to prove that a parol contract, making them the exclusive distributor of plaintiff’s products in four Minnesota counties (although the counterclaim quoted in footnote 1 names but two counties), arose out of a meeting of minds in the manner testified by Schechter for the duration described, and that plaintiff terminated the oral contract without good cause, to defendants’ damage.
Plaintiff contends that it sold Kings-bury beer and other products at agreed prices to the defendants for distribution only in the territory assigned to them. That except for terms of payment to plaintiff, resale to the trade was to be as the defendants saw fit in the exercise of their judgment. That it was against the practice and policy of plaintiff to enter into contracts with distributors, and that in keeping therewith no contract, written or oral, was arrived at between plaintiff and defendants. Further, that Philip C. Engel had no authority, express, implied or otherwise, to make or negotiate contracts on behalf of plaintiff.
The foregoing is the gist of the evidence and issues of the instant case.
1. Is the verdict contrary to the evidence?
The jury were told by appropriate instructions to find the facts, and in so doing, they were the sole judges thereof. The existence or nonexistence of facts going to establish or disprove the counterclaim was the sole responsibil[223]*223ity of the jury.4 Absent the written agreement Schechter repetitiously testified he sought, it became the duty of .the jury to consider the contentions and conflicting evidence of the parties and to sift the true from the false in finding the facts.
The verdict returned for plaintiff on the counterclaim requires the Court to view the evidence in a light most favorable to the plaintiff. The jury having found the facts in its favor on the defendants’ counterclaim, the trial court must accept as true all facts which the evidence reasonably tended to prove, and plaintiff is entitled to all favorable inferences that may be reasonably drawn therefrom.
The existence or nonexistence of the contract, which Schechter concedes was not reduced to writing, was a question of fact for the jury. Likewise, the existence or nonexistence of Engel’s authority to enter into a contract was a jury question.5 The evidence was not such as to compel a verdict for defendants.6 I am [224]*224•of the opinion the verdict is sustained by substantial evidence.
2. Is the verdict contrary to law?
Free access — add to your briefcase to read the full text and ask questions with AI
DONOVAN, District Judge.
Plaintiff commenced action on an account stated. Defendants counterclaimed for breach of contract1 and the only fact issues submitted to the jury had to do with the parol contract relied on by defendants. The jury returned a verdict for plaintiff. The matter is now before the Court on defendants’ motion- for a new trial.
The record is replete with contradictions in the testimony of the parties. It appears from the testimony of defendant [221]*221Irving E. Schechter that he was the only active defendant and the principal witness testifying to establish the contract pleaded in the counterclaim. His testimony describes how he had been in the bottling and beverage business for a long time prior to his contacts with plaintiff. He portrays himself to be an able, go-getting type of businessman and salesman wherever he operated, whether independently or under franchise for others. He became acquainted with Philip C. Engel (plaintiff’s representative in Minnesota since July, 1952) in 1946, when the latter applied for employment with defendants. Following Engel’s appointment as plaintiff’s representative, and in October, 1952, Schechter continues, he was contacted by Engel in the latter’s capacity as plaintiff’s agent or sales manager and was invited by Engel to take on plaintiff’s products as “exclusive distributor.” Schechter told Engel he was “not interested” unless the proposed arrangement was in “writing.” Thereupon, Schechter testified, Engel responded that he would take defendants’ request for a written agreement “up with our president.” A week later, Schechter said Engel returned with samples and prices. Freight haulage and territory were discussed. Schechter again asked for a written contract for “long duration”, which he says was agreed to be “as long as the brewery was in business.” Emphasizing what he said to Engel, Schechter testified, “I said ‘under no circumstances would I take it [the distributorship] on without a written agreement.’ ” He [Engel] said, “We will give it to you in writing.” That thereupon, without the written contract, Schechter gave Engel the first order for a load of plaintiff’s beer, which was received on November 3, 1952.
Schechter went on to testify that his firm had their own trucks and salesmen, augmented by additions to haul plaintiff’s products from its plant in Wisconsin to defendants’ warehouse in St. Paul, Minnesota. Schechter testified that, from time to time he would inquire of plaintiff’s president about the absence of a written contract2, as for instance he says that on December 15, 1952, “I inquired about a written agreement” and president Cole answered, “They are getting it ready”; that this sort of inquiry and character of answer went on until June 9, 1953, when Schechter ordered Engel to “get my agreement.” On the last date Schechter testified that, following receipt of Exhibit “H” (an order from National Tea Company of Hopkins, Minnesota), he telephoned plaintiff’s president to “get the beer to me * * * assuring him [Cole] I would take 50,000 cases a year”, and that thereupon Cole said, “You get that order and I will fill it.” Schechter then said to Cole, “Where is my agreement?” and Cole answered, “Don’t worry, I am the president” of Kingsbury Breweries Company, and that it would be mailed to Schechter. This is denied by Cole.
Schechter testified that his arrangement with plaintiff was “to pay load to load”, but that he always paid when billed, rather than on the basis of load to load. Plaintiff’s exhibits (statements and letters to defendants) show defendants’ credit to be lapsed by past due billing. Disagreement between plaintiff and defendants was obviously in the making.
In the summer (August) of 1954, Schechter was pressing Engel for cooperation in getting him more territory and for the elimination of a competing distributor. Schechter testified Engel initiated steps to remove the competing [222]*222distributor, one Willard J. Chew, and Schechter advanced Engel $200 for vacation purposes. Upon Engel’s return from a vacation Schechter drove to plaintiff’s Wisconsin plant with him for the purpose of clarifying the distributorship, without avail. Following this, said Schechter, Cole, on September 1, 1954, made a personal call at “my office” whereupon Schechter said, “Where is my agreement?” and Cole replied, “You got an agreement. How about a check? [on a past due account].” Schechter gave Cole a check for a substantial amount. Later, in September, 1954, Cole telephoned, saying, “No more beer for you. You are no longer a distributor.” 3
The foregoing is the substance of defendants’ case on the issue of the contract in suit.
Plaintiff’s president, corroborated by Engel, denied a contract was entered into.
Defendants contend they have carried their burden of proof, intended to prove that a parol contract, making them the exclusive distributor of plaintiff’s products in four Minnesota counties (although the counterclaim quoted in footnote 1 names but two counties), arose out of a meeting of minds in the manner testified by Schechter for the duration described, and that plaintiff terminated the oral contract without good cause, to defendants’ damage.
Plaintiff contends that it sold Kings-bury beer and other products at agreed prices to the defendants for distribution only in the territory assigned to them. That except for terms of payment to plaintiff, resale to the trade was to be as the defendants saw fit in the exercise of their judgment. That it was against the practice and policy of plaintiff to enter into contracts with distributors, and that in keeping therewith no contract, written or oral, was arrived at between plaintiff and defendants. Further, that Philip C. Engel had no authority, express, implied or otherwise, to make or negotiate contracts on behalf of plaintiff.
The foregoing is the gist of the evidence and issues of the instant case.
1. Is the verdict contrary to the evidence?
The jury were told by appropriate instructions to find the facts, and in so doing, they were the sole judges thereof. The existence or nonexistence of facts going to establish or disprove the counterclaim was the sole responsibil[223]*223ity of the jury.4 Absent the written agreement Schechter repetitiously testified he sought, it became the duty of .the jury to consider the contentions and conflicting evidence of the parties and to sift the true from the false in finding the facts.
The verdict returned for plaintiff on the counterclaim requires the Court to view the evidence in a light most favorable to the plaintiff. The jury having found the facts in its favor on the defendants’ counterclaim, the trial court must accept as true all facts which the evidence reasonably tended to prove, and plaintiff is entitled to all favorable inferences that may be reasonably drawn therefrom.
The existence or nonexistence of the contract, which Schechter concedes was not reduced to writing, was a question of fact for the jury. Likewise, the existence or nonexistence of Engel’s authority to enter into a contract was a jury question.5 The evidence was not such as to compel a verdict for defendants.6 I am [224]*224•of the opinion the verdict is sustained by substantial evidence.
2. Is the verdict contrary to law?
Whether the oral contract contended for by defendants was one of agency or sales is not important here. The sales feature is undisputed, but was not overlooked in any respect in the Court’s attempt to correspond with defendants’ theory as pleaded and pursued at trial. Defendants demonstrated they were willing to buy and pay for plaintiff’s product. They did just that. The important problem, from their standpoint, was to convince the jury, as argued by their counsel to the jury and again in support of the motion for a new trial, that under the facts of the instant case they had proved the existence, in the words of counsel, of “a mutually enforcible contract between the parties.” 7
The points at issue, significant from the posture of fact and law, are these; (1) Was there a meeting of minds to such an extent as to give rise to a contract? (2) If a contract was consummated, is it definite as to duration? (3) If not .sufficiently definite or mutual as to parties, under what circumstances could it be terminated ?
The instant case is close as to definiteness and mutuality.8 The contract must be for a definite term.9 As I view the instant case, it is more like a sales agency agreement, terminable at will, and for that reason it is not controlled by the cases cited by defendants.10 The controlling feature of the instant case is the first question posed in defendants’ trial brief, i. e., “Under the facts presented here * * * was there a legally en-forcible contract between the parties, or was it void for lack of mutuality?” It must be conceded that if defendants could successfully establish a legally enforcible contract, it was essential to its validity that its obligations should be mutual as to both parties. It is significant that there is nothing in the record to indicate necessity on the part of defendants to give orders in stipulated amounts or if they desired to discontinue such orders why they should not do so without liability to plaintiff for breach of contract.11
In my opinion the verdict is not contrary to law.
[225]*225
3. Is prejudicial error present?
A good part of defendants’ complaint of error has to do with four interrogatories submitted to the jury.12 This was consistent with the Court’s sound discretion. It is convincing, however, of the caution to be exercised in attempts by the Court to satisfy the whim of counsel with reference to requests to charge and interrogate the jury, when the Court’s general charge adequately covers the issues and law.13
Bequests to charge the jury, when submitted, should be ready for trial purposes at the time the parties rest. The instant case was ready for submission to the jury a day previous to the charge. After an overnight recess and when court had resumed, defendants had not as yet tendered their requests to charge the jury. While counsel was advising the Court that the requests were still “in the typewriter and they will be brought over shortly”, it was suggested that counsel dictate them to the reporter. He was engaged in doing this when the belated requests arrived.14 The Court took the time to read, discuss and rule upon the requests, saying: “Where these requests are not in the hands of the Court prior to this time, we are not supposed to consider them at all. * * * I will have to study these while you are arguing” to the jury.
The Court had prepared its charge to the jury and adopted such requests of the defendants as were consistent with the theory of the trial and the applicable law. As given, the instructions fairly and adequately covered the material issues, even though the eleventh hour requests may have been correct statements of defendants’ version of the law.
The Court being satisfied that no prejudicial error exists, and for the reasons hereinbefore set forth, the motion of defendants for a new trial must be denied.