*1 v. Wiscon Respondent, Association, California Wine Company Liquor Appellant. Oshkosh, sin Company Respondent, Wisconsin Liquor Same, v. Appellant. Bay, Green
Sheboygan-Badger v. Liquor Appellant, Company, Respondent. Association,
California Wine 30, 1963. April April Ill *3 For the there appellants brief Shea & by Hoyt, attorneys, and Ralph M. and Hamilton Hoyt T. Hoyt counsel, Milwaukee, all of oral and argument M. by Ralph and Hamilton T. Hoyt Hoyt.
For the there was a brief respondent David E. Beck- Miller, with and Jesse D. and Foley, Lardner, Sammond & Milwaukee, all oral and argument by Mr. Beckwith and Mr. Miller.
Brown, C. J.
The Actions. Counterclaims were brought by Wis- defendant-appellant consin Oshkosh, Liquor Company and defendant- appellant Wisconsin Liquor of Green Company Bay, for breach of exclusive damages contracts distributorship against California plaintiff-respondent Wine Association, which had previously commenced actions against de- these fendants for for merchandise payments received. Later plaintiff-appellant Sheboygan-Badger Liquor Company an action California Wine against commenced also for for breach of exclusive damages contract. trial, and the actions were consolidated two
These Association were suits the California Wine brought by for trial the counter- only settled by stipulation, leaving Liquor claims and the action by Sheboygan-Badger convenience, will be For the liquor companies Company. as the “Peckarsky Companies,” referred to collectively the “Association.” the California Wine Association as court found other Trial was to the which among mаny terminated of fact that the Association wrongfully findings contracts with the Peckarsky exclusive distributorship The trial court made several of fact findings Companies. for breach contract the calculation of damages regarding each of the separate and awarded two actions were setoffs amount which first against re- to the Association for merchandise the amount owed each of these actions the Peckarsky ceived. In the whole of the the Association judgment from appeal of review. files notice
The Facts. a Wisconsin cor- Company, In Wisconsin Liquor Milwaukee, Wisconsin, was located in engaged poration whiskies, brandies, wines, distribution of the wholesale *4 in the eastern in 19 counties contiguous other liquors part owned Sаm Pokrass and It was equally of Wisconsin. 1944, From 1937 to Herman Case E. Hyman Peckarsky. handled all of its manager virtually its general was had two Liquor Company large affairs. Wisconsin sup- whiskies, from which National Distillers it purchased pliers, from which it brandies and purchased and the Association Association, to 1951 known as the Fruit prior wines. Industries, Ltd., is a co-operative under the organized California laws. It co-operative is known as a technically federated because a co-operative majority its members are in co-operatives themselves. The Association manu- factures and sells a wine, line of complete champagne, at both the brandy, level and popular price at the premium level. Material price here are its wine premium lаbeled Wine,” “Ambassador and its labeled brandy “Aristocrat.” officer, Walter was its chief Taylor executive known as the 1950, vice-president general until manager at which Mario time Perelli-Minetti became its chief officer. 1956, Until his death in Huckins George represented the Illinois, in office for Chicago, the 12 mid- states, western Wisconsin. He including also operated brokerage partnership selling Association’s products to wholesalers and At distributors. various times Huckins had different for a partners, including time Herman Case. 1933,
In the Wisconsin Liquor Company was not only a distributor but was also rectifier of wine and brandy. It bottled and labeled its own and sold brandy it along with certain brands from the Association. In immediately war, to the prior amount of sold was brandy nominal. In that there had year been available surplus bulk brandy, and the Wisconsin Liquor Company purchased several hundred barrels of so-called prorate brandy California. the OPA Early established ceiling prices and as a result to become a brandy began better seller. In Herman Case approached George Huckins with a plan to sell Association, this to the brandy which would bottle it under its Aristocrat label. The Wisconsin Liquor Company would then the Aristocrat buy back from brandy the Asso- ciation. This was at a plan second adopted three meeting months later. this During second Walter meeting Taylor and the present, actual at prices which the bulk brandy *5 the Wiscon- and by sold to the Association repurchased was Thereafter, the Wiscon- sin were settled. Liquor Company Aristocrat on the sale of sin cоncentrated Liquor Company brandy. was Company
On the Wisconsin Liquor June Pokrass and Hyman Peckarsky, between Sam split owners. The Wisconsin corporate entity, Liquor principal but under the continued to Company, operate ownership Pokrass in Milwaukee and Waukesha coun- Sam and only The 17 counties went Hyman Peckarsky. ties. remaining transferred assets Wisconsin the physical Liquor Company branch in Oshkosh and which comprised operations and the shares of stock held formerly by Green Bay in the Racine Com- Beverage Wisconsin Liquor Company and Badger Liquor Company, Sheboygan Liquor pany, in return for Peckarsky’s to Hyman Peckarsky Company stock. Wisconsin Liquor Company Irvin, son, and his formed the Wiscon-
Hyman Peckarsky sin of Oshkosh and the Wisconsin Liquor Liquor Company former Oshkosh and Green out Company Bay In branches of the Wisconsin Liquor Company. Green Bay 1950, the sold the Racine Beverage Peckarskys Company Walworth, Kenosha, and counties of which operated Racine, Sheboygan Company Badger Liquor consolidated into a new were corporation Liquor Company as the Sheboygan-Badger Liquor Company. known owned are the Peckarskys three surviving companies present appellants. between For a short following split period ' Pokrass, were Peckarsky Companies required from or purchases inventory through
make all Wis- then owned the Pokrass family. consin Liquor Company a few months the which rise to the' agreement gave After and the were modified per- split *6 mitted to from the directly purchase invеntory suppliers. first direct Peckarsky Companies arranged pur- Distillers, chase been with National which had the company the the Wisconsin principal whisky supplier Liquor direct from Then Company. they purchases arranged the a Association in in with Huck- meeting Chicago George ins. Prior to conference in this between Chicago, split the Pokrasses and the had not caused Peckarskys any in with it change distribution to the Association for respect continued to sell to distributor only one eastern Wiscon- sin, the Wisconsin this namely, After Liquor Company. conference, the Association sold to the directly Peckarsky latter sole and the were its distributors Companies, in that area. 1959,
From 1945 to sold vir- Peckarsky Companies tually Aristocrat it only although handled some brandy brands. Both competitive and the the sale of vigorously promoted Aristocrat through programs extensive of salesmen’s benefits and ad- In March and vertising. April, Association spe- authorized advertisements to be cifically in a number placed in Wisconsin newspapers cities describing the Peckarsky as its exclusive distributor of Companies Aristocrat brandy. In 1947, Irvin learned that Peckarsky Kuechenberg, salesman for another was company, selling Association’s which products city Fond du Lac was in Peck- arsky contacted Richard territory. Peckarsky Sayre, Association, Wisconsin representative and protested. Sayre and discovered that investigated Kuechenberg Sam, from getting products Pokrass. Sayre and Huckins Pokrass, talked with secured the latter’s promise to discontinue selling which he did. Kuechenberg,
In after Herman Case April, left the Huckins’ Lubar P of the & Sales partnership, Joseph Company, J Wisconsin, him' to Huckins to permit Appleton, persuaded Ambassador wine and which brandy Peckarsky sell learned did sell. When the Peckarskys to Huckins who immediately this they complained matter In a ceased the Association’s to Lubar. selling products Lubar dated in which letter to August Joseph canceled, P orders were Huckins wrote that & Company J have in the same area. it was two wholesalers impossible November, written to Irvin letter By dealer- acknowledged Perelli-Minetti existed between the Association and the ship *7 In this letter he sent a another letter he Companies. copy in had written to Pokrass which he discussed Irving the exclusive and merits of stated: distributorships “EXCLUSIVE TERRITORY —Both us in an agree within It system exclusive distribution any given territory. volume, in efforts of the distributor building the protects fix- involved and it makes the possible easier on the parties . . . on both and jobber. supplier ing responsibility an honest distributorship. is one of “Our policy so. it occasion when to do required enforced on have We this not be true here. that will We hope re- are not short, exclusive distributorships if the “In we territory, into coming your others byor spected you, event, action, in any to take appropriate forced will be end in the increase volume a substantial have we must consider other arrange- free to shall feel or we of the year, ments.” the territory, in 14-county their 1949
From Aris- distributors of leading were the Companies Peckarsky The volume of United States. the entire brandy tocrat of Aristocrat brandy Companies Peckarsky the sales of the last substantial, and until was very 1945 to from sub- also was of growth annual percentage years few stantial.
The business relations between were harmonious Peckarsky Companies apparently until 1959, when Perelli-Minetti was informed that the January, had become Peckarsky Companies the exclusive distributor a line of wines and of Paul Masson brandy Company. Although were exclusive dis- Companies tributors for other companies, Paul Masson Company awas fierce of the Association competitor and had been successful in it in other competing against areas of the The reason country. given by the Paul line Masson it obtaining had certain wines which better sellers than were those of the Associa- tion. The had been the Asso- selling ciation’s Ambassador wine without much success proven 'over the past years ceased it in completely selling
This event precipitated growing feeling mutual dis- trust between the Association and the Peckarsky Compa- After nies. to the protesting Peckarskys, Perelli-Minetti informed them that he was considering the appointment of a dual distributor the Sheboygan-Badger Liquor Company 17, 1959, On March without territory. notice giving prior Perelli-Minetti Peckarskys, announced that Im- awas dual distributor in Distributing Company perial March On the Im- territory. *8 Sheboygan-Badger began Aristocrat bran- Distributing Company selling perial in that immediately area. The but Peckarskys protested dy have the of the dual failed to distributor dis- operations The continued. how- Shеboygan-Badger Liquor Company, ever, from the continued to order Association and products distributor by the dual giving with deals to competed deep of Although (the giving customers. free deep dealing amount cases with brandy particular bottles pur- before, had not been practiced Sheboygan- chased) in undertook to this business Badger engage Company device. of this new business Upon learning practice in the Peckarsky Companies Sheboygan-Badger territory, in customers other territories de- Peckarsky Companies’ sired similar deals. deep 1, 1960,
On the Association September authorized the in. to distribute its Imperial Distributing Company products Lac Fond du and Manitowoc counties. The Peckarskys avail, to the Association without immediately protested but and the territories which Peckarsky Companies there was a dual distributor continued to order products from the Association. 1960,
In the summer of the Association reduced credit terms from ninety days sixty days adopted policy to make if refusing were not made shipments payments on time. By April previous ac- delinquent counts of the were settled and brought current.
The relations between the Association Peckarsky became further strained in' Companies due to new 20, 1961, credit of the Association. On policies April letter reduced the credit terms to forty-five and stated that the credit days would run from the period date of not the date of The letter shipment receipt. also stated that interest accrue would on any balance at unpaid the rate of six and that if percent, amounts outstanding were not within a stated time the Association paid would feel free to add one or more distributors in the Peckarsky territory. refused to abide terms, checks, these on some stopped payments and May, 1961, withdrew on Aristocrat promotion brandy by deals. stopping deep
On May Gateway Liquor Company made a dual distributor in the remaining terri-
tory. Again Peckarskys protested vigorously Association. reached a the business relations new
During May, 29, 1961, low. On a carload was May brandy shipped the Association itself but in care of the consigned to Wisconsin of Oshkosh. The sales Liquor Company price $90,028.44 the merchandise was was due payment 13, 1961. The July goods were received on at which time took them June 24, 1961, into their On the Wisconsin possession. July of Oshkоsh issued its check in Liquor Company payment for this sum. The Association warned the Peckarskys if on this check payment Com- stopped no panies would be a distributor of the Association. longer On July Peckarsky Companies stopped pay- check, ment on this and on the the Associa- following day tion informed the Peckarskys that distributorship relation between them no existed. longer
The Association then commenced the actions to present recover for that it had payments goods to the Peck- shipped arsky Wisconsin Companies. Peckarskys’ Liquor Company of Oshkosh and Wisconsin Liquor of Green Company Bay counterclaimed for damages breach of exclusive dis- contracts, and tributorship Sheboygan-Badger Com- Liquor action pany brought sepаrate against Association for the same reason.
The issues this presented by our appeal determination are: Whether
(1) implied is con- to the trary and clear great weight preponderance of the evidence. Whether reasonable
(2) notice was to termi- necessary nate this agreement. Whether the calculation and
(3) measure of damages by the trial court were proper.
121 Whether the allowance interest for the (4) unpaid merchandise received two of the was proper. Exclusive Implied
(1)
Distributorship.
between a
Exclusive
contracts
manufac-
distributorship
turer and a wholesaler have caused no little confusion in
in
the law. These contracts
order to be
unless
binding,
consideration,
based
valuable
upon
present
must impose
each of the
some
such as
obligation-
mutual
upon
parties
1300, 1301,
See Annos. 14 A. L. R.
and 26
promises.
L. R.
often
that
A.
1139. We have
held
mere for-
(2d)
bearance of a distributor to sell
in an
competitors’ products
area
to order
of the
without
manufac-
any undertaking
any
turer’s
at all is
for want of
products
lacking
mutuality.
v.
260 Wis.
50
Pfingsten (1951),
Hoffmann
See
Teipel
N. W.
369.
also
v.
106
(2d)
Meyer (1900),
41,
982;
81
Pessin
Fox Head
Wis.
N. W.
v.
Waukesha
278,
582,
277,
230 Wis.
282 N. W.
Corp. (1939),
579,
250
Strauss v.
Co.
27
Eulberg Brewing
Wis.
(1947),
However,
N.
we
and there is
W.
723.
(2d)
recognize,
in
states so
that a
other
authority
holding,
promise
pro
the sale of
manufacturer’s
or a bona
mote
product
fide
effort
the contract is sufficient consideration for
to pursue
v.
contract.
Pfing
Hoffmann
168, 169;
sten,
Clarke Floor Machine Co.
at
v.
supra,
pages
517, 522, 101
De Vere Chemical Co.
9 Wis. (2d)
(1960),
373,
655;
N.
v.
174 Wis.
Lamp (1921),
W.
Graham
(2d)
376,
Authorities
other states: Fred
contract was oral. This cannot be finding sustained because *11 the record does not reveal oral contract. But in any trial court’s decision referred it to the contract as implied. canWe look to decision of the trial court material not covered the formal findings of fact. Morn findings 313, v. Schalk 14 (1961), 307, 111 Wis. (2d) N. W. (2d) Thеrefore, we will view the of the trial court as finding one to an referring implied contract rather an than orally one. expressed law is
The
well settled in Wisconsin that
the conduct
and
words
the court can
parties
contract.
imply
See
Wojahn v. National Union Bank
646,
144
(1911),
Wis.
667,
1068;
129 N. W.
v. O. M.
Hooper
Corwin Co. (1929),
199 Wis.
The record shows that in 1945 the Peckarsky Companies and the Association began directly undertake their mar- At that keting time the relationship. Peckarsky Companies, although newly orgаnized, were well known to the Associa- tion, for the Association had conducted business with them when were they part the Wisconsin Liquor Company. The had facilities, established per- sonnel, as well a market for the Association’s product and Association, a defined in which it operated. as territory hand, business and had on the other also had established their in question marketed with territory products The Association at time was success previous years. in the Peckarsky interested their marketing products due between the and Peckarsky family to the territory split the Pokrass it is not known whether family. Although from 1945 meet- there was contract arising any express or between the Association and ing subsequent meetings facts Companies, following undisputed occurred: 1959, the
From 1945 until Com- Februаry, Association, were the distributors of the and panies only with Aristocrat sold respect brandy, they promoted to the virtual exclusion of other handled. In their brandy it sale, maintained used and their facili- promotion ties, inventories, retained serviced the territory, per- other functions with to the Association’s respect formed in exclusive distributor contracts. found normally product return, ex- In promoted products by salesmen. and benefits to the Peckarsky tensive advertising *12 in that were incidents which The record shows there sales- territory by having the Peckarsky Association policed its removed selling product men from other distributors In the Association author- area. Peckarsky from in a number of be newspapers ized advertisements to placed as Peckarsky Companies in cities describing Wisconsin Aristocrat brandy. distributor of Upon exclusive such ad- Companies placed the Peckarsky authorization Perelli-Minetti, in In a letter written vertisements. Com- that the recognized ar- and that these distributors exclusive were the panies be enforced. would rangements
As a result of the both and the use promotions by parties facilities, Aristocrat increased brandy 6,191 33,315 in annual sales from cases in cases 1947 to relations, 1960. Until the termination of the Peckarsky were the distributors in bran- Aristocrat leading in the entire United States absolute volume. dy
We conclude that in view of these facts the undisputed of the trial an court that there was exclusive finding implied based of the distributorship upon implied promises to and sell the Association’s promote to mаintain products, provide adequate warehousing territories, and clerical for the facilities of the servicing an in return for an carry adequate inventory exclusive with effective is not distributorship policing against clear great There- weight preponderance evidence. fore, we sustain the court’s that there was an im- finding and that there plied mutuality between the two obligation existing parties. Termination and Reasonable Notice.
(2) nature of exclusive distributorship arrangement one is of continuation rather than one of several separate However, individual buy-and-sell agreements. pres- ent case there was no the duration or provision regarding termination of the exclusive In the case arrangement. early of Irish v. Dean 39 Wis. we (1876), rеcognized rule that an contract was not if invalid it did not agency termination or date provide any designate specific notice period: rule, think,
“The true we is In a this: contract per- services, sonal for the sale of or to be personal property time, from if the contract is silent as to its delivered time duration, either terminate it at party pleasure by giving may
125 notice to the other of his reasonable intention to ter- party Dean, Irish v. 568. supra, minate it.” page This case was followed v. Grau 55 Voechting (1882), N. W. there are Although Wis. some decisions to the Joliet Co. v. Joliet Citi- contrary, Bottling 263, 265; zens’ Co. Ill. 98 N. E. Brewing (1912), Silberman Curtiss Co. v. Cir. 45 Fed. Candy (6th 1930), 451, 453, recent authorities hold that (2d) contract no distributorship having provisions concerning be termination can terminated after the of rеa- only giving Millett sonable notice. J. C. Co. v. Park & Distill- Tilford 493; ers Hunt supra, Foods v. Corp., page Phillips, supra, Case, 30. In the Millett the facts of which are strik- page us, similar to those before court ingly stated in answer that an to the contention indefinite contract distributorship terminable at is will without notice because is it a merely contract of : employment (p. 493)
“The of the agency aspects re- contract distributorship Millett to use its best efforts to quired corporate promote Park the sale of Tilford & and to sell such products prod- ucts to retail market. But in addition Millett to agreed Park and did & Tilford took title them buy products, destruction, and thus assumed the risk of their maintained and tied warehouse facilities substantial amount of its up and accounts receivable. these invеntory While capital to the services be functions are related rendered are of the contract which are aspects called was an agency. Factually, agreement properly But for whole. purposes determining ap- integrated character case the agency Speegle plicability from its sales character. In must be separated relationship are sufficient addi- undertakings non-agency my opinion tional consideration. contract indefi- conclude that the distributorship I “[9] either after party only could be terminated
nite as to time notice.” reasonable by giving prior reasonable time *14 126
Professor Williston discusses the same and comes point to the conclusion: following Where
“(3) the contains agreеment no what- provision ever for its termination. has this been held an
“Quite properly enforceable execu- contract, tory each a binding for reasonable upon party time. It is the settled law that if the agency or em- agent furnishes consideration ployee addition his mere services, he is deemed to have purchased employment for at a reasonable period least where the duration of the is not otherwise defined. A similar result employment should rather than a technical be reached the dealer is though buyer-distributor where in addition to under-
agent, ordered, for the manufacturer’s as taking he pay products to establish or maintain sales and promises adequate a maintenance and demonstration facilities or to provide Williston, said service repair handling products.” ed.), Contracts sec. 1027A. (rev. p.
The Association contends that Millett Case is not because it does not involve an exclusive distribu- applicable tion contract. This factual distinction does not destroy of the enunciated in that case. From applicability principles to an exclusive standpoint parties distributorship contract the factual necessity reasonable requiring notice is enhanced. The manufacturer should rea- greatly receive sonable notice of termination in order to locate another distributor in the area for his or to seek products other the distributor should have arrangements; reasonable notice in order to make the transition from an exclusive distribu- tor to a nonexclusive distributor or to conduct other trans- actions his business. relative to
Therefore, under case, the facts of the present before the Association could terminate the exclusive it had to reasonable to the give notice Peckarsky Companies.
Due to the of the nature complexity of the business of relation their to the Associa- as to much evidence conflicting tion record contains all notice. After hearing be reasonable what would the rec- this examining testimony regarding question ord, notice was reason- days’ trial court found that sixty facts trial court’s was based upon able. The finding and must be circumstances of this business relationship sustained. trial court the Association did have found that
sufficient cause terminate the exclusive of distributorship and that the appoint- Sheboygan-Badger Company Liquor distributor, ment of a dual Imperial Distributing Company, 1959, 17, on March that without territory for sixty-day breached and terminated the exclusive notice distributorship area. The trial court made similar with findings of the breach and termination the exclusive dis- respect to 1960, 1, the Association: the tributors by September ap- the the Company pointment Imperial Distributing 1961, territories; 9, and Fond du Lac Manitowoc May in the re- of the Liquor Company appointment Gateway The trial court found that when the exclu- areas. maining terminated, breached sive were distributorships distributors, non- still were Companies although 1961, exclusive, 31, at which time all until relations July The termination of the non- between ceased. companies 1961, 31, July distributiоn contracts on exclusive were found to be for cause for the a $90,028.44 had on check for stopped payment for of products. a shipment both in their briefs and in their oral parties
Counsel on the various facts have arguments endlessly argued which can be drawn therefrom the inferences or supporting learned of the trial court. But the these findings opposing and clear great are not against weight pre- findings be the evidence and cannot disturbed. ponderance that the The Peckarsky Companies argue appointment rea- the dual distributors Association without prior notice was a breach of the sonable on the dates respective but it did respective agreements distributorship not terminate the and instead con- constituted agreement breach until 1961. We with agree cannot tinuing July this contention. exclusive distribution contracts The were from the be conduct could ter- implied parties at will minated there was reasonable notice. If provided the Association had notice termina- given sixty before days’ tion in each case it been liable would have breach. dual distributors under itself appointment circumstances of case was sufficient this notice that the ex- clusive agreement was terminated and breach continued run for the of reasonable only period .to notice.
In of their contention that the support exclusive distribu- breach, did not terminate at counsel for the Peckar- torship the cases of L. sky Companies cite E. Co. v. Husting Coca Cola 205 Wis. N. (1931), Co. 237 W. 238 N. W. *16 Hansen v. & Taylor Bevеrage Co. Candy (1938), 227 N. 115. These Wis. 277 W. cases are dis- readily they because involve written tinguishable franchises which duration, covered the expressly provisions of in those termination, cases there was cause for no the so the con- In tracts continued to run. the case before us the exclusive will, contract could be terminated at and the breach was the failure to reasonable give notice and termi- nation the occurred after of the expiration time for reason- able notice.
The Association contends that by continuing to purchase after notification of the product termination the ex- contract clusive the the appointment dual respective distributors the Peckarsky waived Companies the breach. Co. Candy cоntention it relies on Curtiss In of this support Silberman, Flint v. Sheet & Tube Youngstown v. supra; 923; Fed. and International 1944), Co. Cir. (2d (2d) 200 Ark. 138 S. W. Co. v. Waldron (1940), Shoe cases are None of these applicable pres- (2d) .the factual case because there are fundamental distinctions. ent held there enforce- In the Silberman Case court was no contract because lacked mu- exclusive distribution it able and, the distributor had no rights tuality consequently, thereunder. In the Flint Case this precise accruing question raised. of the facts in Inter- was not An examination are Shoe Case and the the court holdings national Co. us. In that case different from those before substantially that of shoe-sales relationship merely agency was for one before it terminated. year existed about was only anothеr distributor when it discovered that complained but it continued area was then appointed distributor The court was not convinced there to order more shoes. first instance and held was contract in the actually binding been, if had this conduct the distributor that even there However, in case a waiver of the breach. the present was than years. had existed more thirteen relationship in a a dual distributor territory appointed When and demanded violently protested Companies There are other acts dual distributor be removed. that the did which show that of the distrib- of the dual appointment way acquiesce any Therefore, con- did not of more ordering products utor. a waiver breach. stitute Damages.
(3) breach damages In regard *17 Peckarsky respective three distributorship agrеements territories, trial the learned made numerous court findings of be of fact and held that the measure would the damages on sales each would been margin have prospective company entitled for the the breach and sixty-day period following The termination. final amount of was arrived at damages first the what estimated by average determining margin each, was, commissions, sale plus the sixty-day period minus the actual received each of average by the margin three The trial all court based of Companies. on results of of calculations extensive audits the and other records the amount aver- companies showing of and actual Based on these calculations age margin margin. the trial court found respective Peckarsky Companies to were entitled of following amounts damages: Sheboy- $294.34, costs; Liquor Company, with gan-Badger together $605.10; Wisconsin of Green Liquor Company Bay, Wis- Oshkosh, $2,922.61. consin Liquor Company We have held in case this that trial court’s previously that the notice finding for termination was reason- sixty-day be sustained. held able must We that the appointment the dual in distributors the respective territories under the facts of case by this was notice ter- Association of mination that the exclusive contract terminated sixty after the breach. We days also sustained the trial court’s finding that nonexclusive contract was terminated for Therefore, in cause. the trial court’s measure reviewing calculation of we are concerned with damages only the fac- used tors at loss arriving occurring during sixty- the notice of day period termination. following contend their by appeal addition to amount at arrived the trial damages court are entitled to the they following amounts: (1) Additional discounts were they their obligated give cus- tomers in distributor; order to with dual compete (2) discounts were obliged in other competitively give their portions territory invaded dual yet *18 cannot be additional factors recog- distributors. These two first one was factor nized elements of for the as damages the sixty-day period the actual margin during computing related a breach in is directly and the second one not areas invaded. already entitled to
The contend are Peckarsky Companies the the earned the dual distributor during sixty- profits by for this amount it is not rec- We cannot allow period. day is outside the of and damages clearly as element ognized and actual margins. of estimated scope calculating Therefore, of trial court the measure and calculations the from breach by the damages resulting with the respect be Association correct and should sustained. the were on Debt. Interest Liquidated (4) were commenced by Two actions present appeal merchandise for of purchased Association payment $125,597, for Bay Green Wisconsin Liqúor Company for of Oshkosh and the Wisconsin Liquor Company denied $181,465.35. companies liability The two liquor for lesser amounts liability that amount but admitted due as a result of credits them $122,767.95 $175,231.07 these Prior to trial parties the merchandise purchased. on final to the Association amounts owed that stipulated re- $124,097 $178,132.35, merchandise were costs would interest and which parties spectively, plus However, interest was on computed later. no compute After hearing memorandum decision. these amounts their briefs relative and reviewing of counsel the arguments issue, aby supplemental opinion court to this the trial on these and allowed interest order previous amended its from the rate of five computed at percent amounts received. were after forty-five days goods that these contend now Peckarsky Companies due in payment sums consisted of respective amounts merchandise after certain credits as deducting stipulated on 20, the claims February They argue days after the forty-five goоds receipt were and no interest was unliquidated allowable because time, these amounts were not known at that for the credits due the on the merchandise had not *19 been yet determined. held
We have
that before
can
interest
be recovered the
amount claimed must be fixed or determined or
de-
readily
terminable. Maslow
Corp. v. Weeks Pickle
Cooperage
Co.
270 Wis.
(1955),
70 N. W.
577. See
(2d)
Necedah
v. Juneau
Mfg. Corp.
206
County (1932),
Wis.
316, 334,
(5) Costs. relate to the appellants’ appeals measurement and amount these damages. On issues are the los- appellants motion ing party. Respondent’s to review relates to the con- tention that there no were implied contracts between the On these issues respondent breach thereof. nor any parties exceeding briefs pages lost. Each submitted party brief. Each tax costs for its entire party’s each has asked to that on which party is to the issues brief devoted largely be awarded costs present- defeated and should not These on which it did succeed. the contentions ing briefs are the respective contentions so large part briefs that under the remainder of such so with interwoven that costs should have determined no the circumstances we be awarded any party. Motion affirmed. to review
By the Judgments Court.— No to be taxed by any party against denied. costs opponent. Dieterich,
Hallоws, Gordon, (dissenting). JJ. portion judgment We dissent from respectfully period limits the distributor damages which after California Wine Association terminated sixty days *20 exclusive character of the agency. did not out the The contract between the parties spell the exclusive Un terminating distributorship. mechanics circumstances, law reasonable der such requires between the notice termination and of time period elapse Milwaukee end of the exclusive distributorship. actual 614, 618, 851; N. W. Allis 217 Wis. 258 v. West (1935), 55 Wis. 13 N. v. Grau W. Voechting (1882), 230; The rule Irish v. Dean 39 Wis. 568. (1876), in order terminate a distribu reasonable notice requiring Millett in J. C. Co. v. recently upheld has more been torship 123 1954), Distillers C. Cal. Corp. Park & (D. Tilford Williston, 4 Fed. See also Contracts Supp. (rev. 1027A. sec. ed.), p.
For an extended time excess period (in thirteen exclusive dis- Peckarsky Companies enjoyed years) efforts, their own created the tributorship. Through broad which been acceptance had obtained for the manu- facturer’s For these reasons product. we consider that the trial court erred as a fixing only reasonable sixty days of notice for period termination.
We consider that in this regard the found damages the trial court for the several Peckarsky are and we would favor inadequate, the case for a remanding redetermination of the based damages upon longer period of notice. It would seem us that the trial judge might months; well fixed the event, have at six period any his at setting period sixty days inadequate. as District Attorney Milwaukee County,
McCauley, Tropic others, v. Respondent, Appell of Cancer ants.* 20, 1963.
April May *21 * denied, costs, rehearing Motion for with on October $25