*1 Service, Inc., corporation, Diesel Nebraska appellee, v. Accessory appellant. Sales, Inc.,
Donald J. Wright appellee. & Simmons C.J., Boslaugh, McCown, Krivosha, Heard before *2 JJ. Hastings, Brodkey, White, Clinton, and Boslaugh, J. appeal in case which arose out of
This is a second concerning controversy the termination of a a distributorship
agreement parties. the The between granted plaintiff distributorship agreement the territory the for the distribution of R-W exclusive precleaner, factured manu- filter or cleaner device an air engines. by on the defendant and used diesel During plaintiff was a distributor for the time that the large developed defendant, a market for the it the precleaner. R-W alleged petition and the defendant
The amended defendant, Wilson, the Thomas W. conspired ployed Cranston, a Lenvil P. salesman em- injure plaintiffs plaintiff, business, to the the acquire monopoly, trade, the restrain create practices plaintiffs unfair business business agreement. distributorship terminate jury the case was submitted to the At the first trial eight special which contained a form of verdict jury questions. had not con- found the defendant injure plaintiffs spired the business; to with Cranston agreement by failing plaintiff breached the had promptly pay the default within and did not correct days notice; the defendant had not waived the after agreement by plaintiff; there had been breach of no accord and
satisfaction;
had
the defendant
con-
catalogs
plaintiff
plaintiffs
and the
had
verted the
damaged
$3,000
in the amount of
because of
been
catalogs;
plaintiff
and the
had not
its
conversion of
damaged
the defendant’s “bad faith”
because of
been
or
termination of the contract.
“without cause”
judgment
for the
on
entered
The trial court
Later,
the verdict.
defendant’s motion to set
judgment
granted
verdict,
aside the
or
the trial court
portion
remittitur
the verdict
excess of
$800.
jury
The trial court had instructed
that the
required
pay
was
the defendant for each
days
invoice within
default under the
that the
if it owed the defendant
days
past
shipping
on an invoice 30 full
more
date. We held this instruction was erroneous and that
the evidence did not show the
was in default.
improper
We concluded that a remittitur was
facts and circumstances of the case because it was
under
probable
not
did
understand the manner of
the submission of
case and
the verdict
result
error or
mistake. Diesel
Service,
Accessory Sales, Inc.,
At the second trial the defendant introduced relating additional evidence to the indebted- agreement. ness to the defendant under the evi- This plaintiff dence tended to default under the establish inwas agreement 28, 1975, on March but by April day 21, 1975, had eliminated the default on which Thomas president Wilson, of the de- fendant, came to the office told E. Daniel plaintiff, Kinnison, the of the that the con- tract was terminated. jury court, however,
The trial withdrew from the any concerning plaintiff issue whether the was in de- fault under the on March The jury specifically was instructed that the in not default on March and that the de- right attempt fendant had no to terminate the alleged contract because of the default. again jury upon to the case submitted interrogatories.
special returned the follow- ing verdict: parties satisfaction’ an ‘accord and and effect “1. Did obligations settling
concluding all duties by contract? under their other to the owed each _or . ..... Answer
Yes No conspire Accessory Sales, Inc., Did defendant “2. alleged plain- any purposes Cranston Lenvil No. 2? Services, forth Instruction Inc. as set tiff Diesel _or Answer Yes No any, damages, incurred if of Amount “3. conspiracy with Lenvil defendant’s of because alleged by plaintiff purposes Diesel for the Cranston Service, Inc.
Answer _$250,000.00_ parties’ in existence for a contract been “4. Had the meaning period time, within the of In- reasonable Accessory Sales, 23, when defendant No. 16 & structions attempted it? to terminate Inc. _ _ or Answer
Yes No Services, receive Inc. ever Diesel Did “5. intention to terminate defendant’s notice of reasonable meaning contract, of Instructions No. within the 23? 16 & _ _or Answer No
Yes any, damages, if incurred Amount of “6. being parties’ (a) not contract because existence prior period of time reasonable for a (b) attempted because of termination: defendant’s (b) (a) and or both termination: $_” Answer *4 jury had con- the defendant found that Since plaintiff’s
spired Cranston, former with Lenvil acquire injure salesman, business jury practices, business did its business unfair interrogatories. The trial not answer the last three judgment court entered on the verdict and awarded attorney $37,650 fees the amount of $2,117. has costs the amount of The defendant appealed. jury appeal will not be set aside on
The verdict of a clearly wrong. Paynter, it is Sortino v. unless Neb. determining (1980). In whether the 292 N.W.2d jury verdict, to sustain a evidence is sufficient favorably most to the must be considered evidence successful every party, fact re- controverted must be favor, is entitled to the benefit of in his and he solved reasonably any deducible from it. Lockhart v. inferences Cheese, Inc., Continental second trial was such that the
The evidence at the following find the facts to be true. could original president of the was the E. W. Wilson During Accessory. the course of the business defendant plaintiff, relationship E. W. Wilson retired with became of the and his son Thomas Wilson retirement, to his father’s Thomas defendant. Prior friendly Cranston, Wilson became eventually employees salesman, told other “get retired, he that as soon as E. W. would defendant plaintiff, customers, take over its and sell rid of” the precleaner Thomas Wilson also told the direct. employees would come to work for the that Cranston defendant. prior retirement, W.’s Thomas Wilson
In to E. stating notice of default sent companies distributorship between the two bring if the did not its would be canceled brought plaintiff at that time account current. The account substantially current, and the contractual relationship continued. again January 27, 1975, Wilson sent the Thomas “60-day notice.” The contract termination
provided continue unremedied [a] that “should breach days period party after written notice the for a may party in . the not default... not default. . then agreement give written notice of termination for the days the which shall become effective 10 after service Sixty days later, 28, 1975, thereof . . . .” on March plaintiff terminating a letter Thomas Wilson sent the distributorship the ostensibly because the account brought plaintiff.
had not current the been to fill The defendant continued orders from the plaintiff April day that until 1975. On Thomas plaintiffs came to the office and told the Wilson plaintiffs that the contract was terminated. delivery Accessory The last sale and place from to Diesel took termination, At the time of on that date. the only Diesel was the distributor of the defendant which plaintiff only had a contract. The was not the payments, only distributor behind but it was the one terminated. April Cranston notified the quitting plaintiffs employ. the a.m. that he was 7:30 day,
On the same Cranston went to work for the de- day spent telephone the entire on the fendant calling advising plaintiffs the customers and them the precleaner purchased directly R-W could now be from Shortly thereafter, the defendant. upon Cranston called personally the same customers and advised them longer precleaner the that Diesel was distributor they that could order direct from the defendant. At Cranston, direction, this time under Thomas Wilson’s catalogs destroyed picked up the only precleaner not which contained but other products appears sold as well. It also plaintiff’s employ, that, even before he left brought to the office of the defendant Cranston plaintiff’s customers that he carried with books of knowledge, and, him with Thomas Wilson’s had the copy office secretaries at the defendant’s informa- telling books, tion from the customer copying secretaries that the had to be done before he plaintiff. quit Also, left plaintiff, before Cranston prepared by
500 letters were the defendant’s stating longer office was no precleaners they distributor for the R-W and that could purchased directly. now be from the defendant These letters were mailed to the customers on April day 21, 1975, the same that Cranston went to work for the defendant. recently
This court has
confirmed that
there is an
*6
injury
action in Nebraska for
to one’s business. Dixon v.
Reconciliation,
Inc.,
45,
206 Neb.
ceived conspiracy.’” design the essence of is of common 804, 808-09, Simmons, 280 N.W.2d Davidson v. proved points (1979), it out: “If be 648-49 object, pursued acts, defendants, the same their part performing although means, one one different part, the attain- with a view to another and another ment of the that object.” justified object, is the conclusion same engaged conspiracy they to effect that were closely point Frank H. most case Nebraska rehearing Gibson, Inc. v. Omaha Coffee Gibson, In the de- Neb. fendant, buy wholesaler, wished to the retail a coffee plaintiff. supply The evidence business of the coffee president and one of the the defendant’s showed that (who plaintiff’s was also a director and salesmen arrange- plaintiff) worked out an in the stockholder ment whereby, plaintiff’s president would not if the agree terms, the defendant’s to sell on the defendant’s salesmen would and all of the company simply equipment and take over the form a new president, The defendant’s and customers. plaintiff’s president, Bellows, “‘“Well, Clark, told the * * * something prepared out” “we are if we can’t work up company. go ourselves, our own into business boys, set *7 agreed go us, men, to with and we will Your start customers next have delivery your company start of coffee to this and Monday morning.’” 174, at Id. 137 opinion “After he The Gibson states: at N.W.2d [Bellows] 705. [plaintiff’s learned that Clark Loseke agreed plaintiff] had to form of salesman and a director company take over the business with the and to another force, had to sell to the he determined he sales Gibson highest way replace his sales- There was bidder. Conroy quick The last coffee order to notice. men on company he would be out of delivered and had not been force, he forced so was to sell without a sales business the authorization of the could. He secured as best he
805 physical stockholders to sell and sold the assets of Company Gibson to Continental Coffee ... at their book good although sold, value. will was fact is dis- No puted by 176, defendants.” Id. at at 137 N.W.2d 706. opinion case,
In the
first
the Gibson
Neb.
(1965),
judgment
329,
evidence of an unlawful motive on the defendants. rehearing opinion case, in the Gibson the first vacated the evidence was held to be sufficient finding jury’s conspiracy.
to sustain the of Frank H. supra. Gibson, Inc. v. Omaha Coffee opinion “[Here In the we w]e second stated: do not attempt business, have a refusal to do but rather an by taking advantage steal a business unfair aof relationship. working business with on its own terms or to Here we have Clark fiduciary, Conroy Loseke, to force a sale to
destroy good will of Gibson. understanding, intent, Proof of the usually largely such instances must rest on inferences. testimony Here, however, we have direct on the intent Conroy, essentially by legitimate corroborated preliminary Also, inferences from Loseke’s actions. preparation promptness which the defendants took over the Gibson routes can sub- preconceived plan.” stantiate the inference Neb. at *8 very present show that it is case
The facts the Here there was direct evi- case. similar to the Gibson “get rid of” the intended that Thomas Wilson dence plaintiff customers, distributor, over its and take as a directly. precleaner Cranston, the R-W sell plaintiffs employees salesman, defendant’s had the prepare plaintiff’s copy and customers the books mailing with reference to to those customers mass employed changeover, while was still all Cranston joining quitting plaintiff. After plaintiff’s firm, called on the Cranston the defendant’s destroyed precleaner customers former catalogs. plaintiff’s everything April 21, 1975, inwas readiness for the the through plaintiff’s customers,
takeover of Compare Wilson. this and Thomas efforts of Cranston substituting pertinent Gibson, the names citation from testimony present we have direct case: “Here ... to the essentially [Wilson], corroborated on the intent of legitimate Also, [Cranston’s] from actions. inferences promptness preparation preliminary with and the [plaintiff’s cus- defendant took over which the precon- inference of a tomers] can substantiate plan.” ceived opinion points the fact that even if out
In Gibson the legitimate, prevent goal that does not find- the end legitimate purpose ing conspiracy. does not “A preconceived plan justify It is the an unlawful act.... illegal....” purpose accomplish which is Frank H. rehearing Gibson, 169, 181, Inc. v. Omaha Coffee points Gibson N.W.2d leaving employ to work for out that illegal company not an act. “There is another including any plaintiff’s employees, question that employ any Loseke, at time could leave anyone employment else, and it is not their take agree- leaving employ is actionable. It is the any that unless a sale made to before sale ment Conroy they business.” Id. take over the Gibson would at *9 the in this We conclude that evidence case was finding conspiracy. to of a sufficient sustain conspiracy, any Because the found there was a right issue as to the defendant’s distributorship agreement to terminate the in with terms accordance its unnecessary became moot. It is therefore to consider assignments relating that the the of error to the instruction
plaintiff was not default under the 28, March 1975. sought damages plaintiff profits to recover of
lost as result the defendant’s tortious interference precleaners. with the sales of R-W “The general prospective profits rule is that from an prevented interrupted by business, established or defendant, tortious conduct of the are recoverable when proved reasonably (1) it profits (2) is that it is certain such except tort,
would have been realized for the and can be ascertained and profits that the lost
measured, certainty. introduced, from evidence with reasonable profits speculative,
. . . Such lost must not be imaginary, remote, or but must be established with certainty by R, reasonable the evidence.” K Inc. v. & Storage Corp., Crete 194 Neb. 231 N.W.2d 114 Trowbridge Galyen, Ford,
In D. W. (1978), approved this court computing profits method of ly lost which was substantial- by plaintiff similar to the method used in this profits] per [lost case. “The trial court awarded on a by average computing profit per unit basis unit net new reports from the sold financial statements and of figure which were in evidence. . . . This appears reasonably compu- to be as a accurate matter of tation.” Id. at N.W.2d present plaintiff computed average
In the case the an averaging profit per profit per net unit net unit years immediately preceding from the the termina- distributorship. tion of then precleaners total sales of R-W made established the years during subsequent the defendant the 5 nearly precleaner 24,000 termination, a total of average yearly kits, plied 4,600 of over kits. an sale Multi- average profit per plaintiffs unit, net proof profits approximately of annual lost of resulted year, nearly years per $300,000 $57,500 for the 5 By using which offered evidence. for average figure, annual sales accounted uncertainty exactly for some the same number of the termination. it would have sold precleaners as defendant did after
“ prospective profits may ‘[L]oss . .. if be recovered the evidence shows reasonable certainty both their occurrence and the extent thereof. * * * Uncertainty any damages as to whether fact recovery, fatal were sustained at all but un- ” certainty Pizza, *10 as to the amount is not.’ El Fredo Inc. v. Roto-Flex Oven N.W.2d (1978). All of 363-64 calculations are by supported in the evidence business records of both jury’s plaintiff. The defendant award of supported by $250,000 was the evidence.
The defendant’s final contention is that the attorney was not to recover an fee. The entitled trial court found that the was entitled to recover attorney (Reissue § fee under Rev. Stat. Neb. 59-821 “Any person 1978). provides: The statute who shall be by any injured property person his business other by anything persons, or to be unlawful therefor . . . and shall recover actual the costs of reason of forbidden or declared
by may 59-828, sections 59-801 to sue
damages . . . and including attorney’s suit, a reasonable fee.” conspired The found defendant had injure plaintiff’s business, to Cranston restrain precleaners, monopoly, create a trade R-W by acquire business unfair business practices alleged plaintiff. conspiracy as Such unlawful” is “forbidden or declared to be statute. See 1978). (Reissue 59-801, §§ 59-802 Neb. Rev. Stat. permit verdict was effect of the attorney § fee under 59-821. a reasonable to recover in the award its discretion not abuse trial court did attorney plaintiff. fee to the of an judgment being prejudicial error, There affirmed.
Affirmed. dissenting. J., Clinton, majority opinion respectfully because the dissent
I appeal. on the An issues raised not confront the does understanding may re- the issues be obtained of all original opinion ferring Diesel and dissent. Serv- Accessory Sales, Inc., ice, Neb.
N.W.2d 258 majority opinion appeal case the the first of this Accessory ledger kept the Die- held that because ques- “open basis, account” account on an sel Service delinquent was under Diesel Service tion of whether the contractual provisions permitting termination of by regarding the to be determined the contract was payments of an to have been made on the basis sales and open first trial was that The evidence at the account. delinquency delinquent when was Diesel Service invoice-by-invoice computed There was no basis. on an trial as to whether Diesel Service at the first evidence was of an computations delinquent were made on the basis if open account. interpreted and remanded the contract
This court Accessory retrial, introduced At the for a new trial. showing contradicted, evidence, Diesel was not which payments delinquent when were even Service *11 open applied basis. account Accessory complains appeal because the trial jury follows: as trial instructed ESTABLISHED at the second court IN PREVIOUS “IT HAS BEEN THAT PLAINTIFF IN THIS CASE PROCEEDINGS 28, AND MARCH ON IN DEFAULT WAS NOT THAT RIGHT TO HAD NO DEFENDANT THE ATTEMPT TO TERMINATE CONTRACT BECAUSE OF ALLEGED DE- PLAINTIFF’S jury It contends that should have been FAULT.” permitted to decide whether Diesel Service was delin- quent open applied. account method when is
Accessory upon following principles. relies application doctrine of law of the case has evidence where upon point lacking a material which is at the produced trial at the trial. Master first tories, second Labora- Chesnut, v. Inc. 157 Neb. N.W.2d 571 (1953). phrase “reversed and remanded for a new general parties trial” is a remand and the stand in the position if same as the case had never been tried. Master supra. agree Laboratories, appellant. Chesnut, I with the principles, language the above Under of majority opinion pertaining in the first case to direc- delinquency apply tion of a verdict on the issue of as the law the case would only where the evidence on the issue on retrial the same as on the first trial. In this appeal case it was not. This is law action. On we do not decide the facts. The trial court should have submitted delinquency to the Accessory’s right the issue of of the account and
to terminate in accordance with the
Accessory
right
terms of the contract. If
had the
under
terminate,
the contract
give
then cancellation could not
any liability
part. Hompes
rise to
on its
v. Goodrich
State v. appellant. L. Hilker, Eldon