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Miller-Becker Co. v. Ballantine

Decided: July 12, 1950.

THE MILLER-BECKER COMPANY, AN OHIO CORPORATION, PLAINTIFF-APPELLANT,
v.
P. BALLANTINE & SONS, INC., A NEW JERSEY CORPORATION, CARL W. BADENHAUSEN, WILLIAM H. ALLEY, F. E. OGDEN AND D. RAY CHORPENING, DEFENDANTS-RESPONDENTS



McGeehan, Colie and Eastwood. The opinion of the court was delivered by McGeehan, S.j.a.d.

Mcgeehan

The plaintiff appeals from a judgment entered in the Chancery Division of the Superior Court. The plaintiff is a bottler of soft drinks and a distributor of ale, beer and soft drinks in Cleveland, Ohio, and in the surrounding area. It has been in business for more than forty-eight years. The corporate defendant is a brewer of malt beverages and the individual defendants are officers or employees of the defendant corporation. Since 1942 plaintiff has been the exclusive distributor of defendant's ale and beer in the Cleveland area.

On March 8, 1949, plaintiff filed a complaint alleging that in January, 1942, plaintiff and defendant Ballantine entered into an oral agreement "by the terms whereof plaintiff agreed to establish and develop a market for the sale and distribution of the products of Ballantine * * * and * * * not to sell or distribute any premium ale other than that of Ballantine,

in consideration whereof, Ballantine agreed that so long as plaintiff established and developed and continued to develop the market for Ballantine's products, and sold said products within the allotted territory, and so long as plaintiff did not sell or distribute any premium ale other than that of Ballantine, Ballantine would ship to plaintiff all of plaintiff's requirements for Ballantine's products for resale within the allotted territory * * * and to no one else." Further, that the plaintiff agreed to pay to Ballantine the price established by Ballantine for such products in Ohio. It alleged that under this oral agreement, the plaintiff has an exclusive franchise for the sale of defendant's ale and beer in the Cleveland area, and it charged that defendant contemplates a wrongful termination of the contract. An injunction was sought against defendant from delivering its products to anyone other than plaintiff for resale within the Cleveland area and from doing anything toward supplanting plaintiff as its exclusive distributor in that area. A preliminary injunction was granted.

The defendant's answer denied the making of any contract and alleged that in January, 1942, it selected the plaintiff as the distributor of its products in the Cleveland area, terminable at the pleasure of either party; that the operation of the plaintiff became unsatisfactory to it and it decided to discontinue the relationship, but it was prevented from giving formal notice of termination by the preliminary injunction. Later, on July 11, 1949, by leave of court, defendant gave notice in writing of termination of the distributor relationship, to be effective sixty days thereafter. After final hearing, judgment was entered dismissing the complaint and dissolving the preliminary injunction, but also granting a similar injunction "until further order of this Court and on the condition that appeal from this final judgment be diligently prosecuted by the plaintiff."

It was admitted that from 1937 to 1942 the plaintiff sought the Ballantine distributorship in the Cleveland area; that in 1942 the distributor in that area terminated the relationship,

and that on January 12, 1942, Mr. Becker, acting for the plaintiff, and Mr. Von Busse, acting for the defendant, had a conference at defendant's plant in Newark, New Jersey, concerning this distributorship, and came to an agreement, leaving the detailed boundaries of the area involved to be fixed by Mr. Twine, defendant's representative, at a later conference. The nature of this agreement and its legal effect are in dispute.

The court below found that the plaintiff failed to establish the agreement it alleged; that the agreement made at the conference of January 12, 1942, was for representation of the defendant by the plaintiff for such period of time as suited the parties, both parties reserving the right to discontinue or change their arrangements; that the agreement made on January 12, 1942, was embodied in a letter from defendant to plaintiff, dated January 22, 1942; and that the plaintiff failed to prove an enforceable agreement. The letter of January 22nd read as follows:

"It is with pleasure that we welcome your association as our distributor in the territory outlined by our representative, Mr. H. J. Twine.

"We reserve the right to discontinue, or change our present arrangements, and you have the same privilege should our relations for any reason cease to be mutually satisfactory.

"Please be assured that it will be our constant endeavor to make this association a source of complete satisfaction to you, both as regards the maintained high quality of our products and the efficiency of our service. We feel confident that our satisfaction with your distribution ...


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