Melo-Tone Vending, Inc. v. Sherry, Inc.

656 N.E.2d 312, 39 Mass. App. Ct. 315, 1995 Mass. App. LEXIS 800
CourtMassachusetts Appeals Court
DecidedOctober 17, 1995
DocketNos. 94-P-970 & 94-P-1141
StatusPublished
Cited by33 cases

This text of 656 N.E.2d 312 (Melo-Tone Vending, Inc. v. Sherry, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Melo-Tone Vending, Inc. v. Sherry, Inc., 656 N.E.2d 312, 39 Mass. App. Ct. 315, 1995 Mass. App. LEXIS 800 (Mass. Ct. App. 1995).

Opinion

Kass, J.

Relatively recent opinions that have undertaken to explicate the torts of intentional interference with a contract or prospective contractual relations have underscored that a [316]*316necessary element of those causes of action is a defendant’s improper purpose or use of improper means while interfering with the contractual arrangements of others. See United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 816-817 (1990); Wright v Shriners Hosp. for Crippled Children, 412 Mass. 469, 476 (1992); Boothby v. Texon, Inc., 414 Mass. 468, 487 (1993); King v. Driscoll, 418 Mass. 576, 587 (1994); Serení v. Star Sportswear Mfg. Corp., 24 Mass. App. Ct. 428, 432-433 (1987); Mullen v. Ludlow Hosp. Soc., 32 Mass. App. Ct. 968, 971 (1992); W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct. 744, 751-753 (1993); Conway v. Smerling, 37 Mass. App. Ct. 1, 7-8 (1994); Walker v. Waltham Hous. Authy., 44 F.3d 1042, 1050 (1st Cir. 1995); Restatement (Second) of Torts § 767 (1979). In those cases, the courts determined that the necessary element, which for shorthand purposes we may call “malevolence,” was missing.2 The case now before us illustrates the harboring of an improper purpose and the use of improper means.3

Melo-Tone Vending, Inc., the plaintiff (Melo-Tone), is in the business of installing coin-operated vending machines (e.g., cigarette machines, jukeboxes, games, amusements, and pay telephones) in locations such as barrooms and restaurants.4 Among its accounts was Bentley’s Steak House at 570 Southern Artery, Quincy, an establishment owned by Sherry, Inc. (Sherry), of which the controlling figure was Brian Leonard. On June 22, 1989, Melo-Tone and Sherry entered into a contract under which Melo-Tone was to install at Bentley’s a jukebox and two pool tables, in addition to a cigarette machine already in place. Sherry was to receive a “commission” of 22.75% on each package of cigarettes sold and 50 % of the net yield from the jukebox and pool tables. [317]*317For a term of eight years (i.e., until June 21, 1997), Melo-Tone would have the “sole and exclusive right” to operate vending machines in a “prominent part” of Sherry’s premises. Melo-Tone identified its machines by large green labels, bearing its name and telephone number, that were placed on the fronts of the machines.

Business between Melo-Tone and Sherry was uneventful until January, 1992, when Sherry was approached on behalf of James Indelicato, proprietor of Park Square Vending (Park Square), with a proposition for making Bentley’s over into a sports bar, for which — not incidentally — Park Square’s machines would replace Melo-Tone’s. Sherry’s principal officer, Leonard, gave the word to Park Square’s advance man that there was a small matter of a contract with Melo-Tone, but that did not derail the sports bar project. Late in January or early in February, 1992, Melo-Tone’s principal officer, Jack D. Kerner, got wind that Park Square was going to install an air hockey game at Bentley’s. Kerner called Park Square and mailed to Park Square a copy of his “exclusive” contract with Sherry regarding 570 Southern Artery. Nevertheless, on February 11, 1992, Park Square moved its air hockey game machine onto the Sherry premises.

By letter dated February 18, 1992, Melo-Tone’s lawyer informed Park Square that it had exclusive rights to place vending machines at Sherry’s establishment and demanded immediate removal of Park Square’s air hockey machine. Park Square instead added two pool tables and a cigarette machine, as well as some other machines, at Sherry’s place of business. Space was a problem that Park Square solved by furnishing funds to Sherry to move Melo-Tone’s machines out. On March 6, 1992, Melo-Tone brought an action against Indelicato, Sherry, and Leonard. Indelicato provided for Sherry’s and Leonard’s defense.

As to the defendants Sherry and Leonard, the plaintiff Melo-Tone stipulated dismissal well before trial, by a filing made February 1, 1993. There had been a reconciliation: Melo-Tone was back in and Park Square was out. Melo[318]*318Tone’s common law claims and c. 93A claims were tried to a jury (the trial judge having elected to have the jury find the facts on the c. 93A question). The jury returned a verdict that the defendant Indelicato had intentionally interfered with the contractual relationship between Melo-Tone and Sherry; that the defendant committed an unfair act or practice in respect of the plaintiff; and that he had done so wilfully. The jury set the damages at $21,000, which the judge, exercising his discretion under G. L. c. 93A, § 11, doubled and to which he added $11,255 in legal fees. Indelicato has appealed, raising multiple issues, among them that intentional interference with contractual relations had not been proved because there was no evidence of an exclusive contract or of improper purpose, i.e., that he was entitled to a directed verdict on the tort of intentional interference with contractual relations and, logically, on the charge of unfair practice as well.

1. Intentional interference with contract. To make out a case of intentional interference with a contract, a plaintiff must prove that “(1) he had a contract with a third party; (2) the defendant knowingly induced the third party to break that contract; (3) the defendant’s interference, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant’s actions.” G.S. Enterprises, Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 272 (1991).

As the summary of the facts the jury could have found demonstrates, there was more than sufficient evidence to permit the jury to find that (1) Sherry had entered into an eight-year contract with Melo-Tone to have Melo-Tone operate vending machines on Sherry’s premises; (2) Indelicato had induced Sherry to get vending machines from him and to push Melo-Tone’s out the door; and (3) Melo-Tone lost profits while its machines were excluded from Sherry’s place. Although obliged to concede by the overwhelming evidence that Melo-Tone had entered into a contract with Sherry, Indelicato urges that the contract was not exclusive for the entire Sherry premises but only for that which was a “promi[319]*319nent part of the premises,” a vague provision which failed to warn Indelicate what portion of Sherry’s premises was off limits to him.

In context, as the evidence tended to prove, “prominent part of the premises” meant where the public would go in Sherry’s establishment. An exclusive supplier of vending machines would wish to avoid having his equipment relegated to locations where the customers were unlikely to come across them. Indeed, the schedules pertaining to the details of amusement, music, and cigarette machines, which are part of the agreement, modify the phrase “prominent part of said premises,” with the words, “accessible to the public and the customers of the owner.” The judge correctly ruled that the agreement was not ambiguous on this score.

We arrive at the crux of the matter. Indelicate argues that his motives were competitive and financial, not to harm Melo-Tone, and that his conduct was not improper. See United Truck Leasing Corp. v. Geltman, 406 Mass, at 817; King v. Driscoll,

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Bluebook (online)
656 N.E.2d 312, 39 Mass. App. Ct. 315, 1995 Mass. App. LEXIS 800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/melo-tone-vending-inc-v-sherry-inc-massappct-1995.