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Cook-master, Inc. v. Nicro Steel Products

OPINION FILED FEBRUARY 20, 1950

COOK-MASTER, INC., APPELLANT,

v.

NICRO STEEL PRODUCTS, INC. ET AL., APPELLEES.



Appeal by plaintiff from the Superior Court of Cook county; the Hon. JOHN E. PAVLIK, Judge, presiding. Heard in the first division of this court for the first district at the October term, 1949. Affirmed in part and reversed in part and remanded. Opinion filed February 20, 1950. Released for publication March 7, 1950.

MR. JUSTICE FEINBERG DELIVERED THE OPINION OF THE COURT.

Plaintiff appeals from an order sustaining a motion to strike its second amended complaint, dismissing the action, and entering judgment against plaintiff.

The question upon this appeal is whether any of the six counts of the second amended complaint, claiming damages, allege a cause of action. Count I refers to a written contract and alleges a breach thereof. Count II refers to an oral contract concerning the same subject matter, and a breach thereof. Count III alleges unfair competition, the misappropriation of plaintiff's confidential information given to the defendants, and the misappropriation of the particular designs, sketches and specifications involving the subject matter of the oral contract. Count V refers to a like cause of action arising out of the written contract. Counts IV and VI refer to the same oral and written agreements respectively, and charge a conspiracy to maliciously and intentionally interfere with plaintiff's contractual relations, and to destroy plaintiff's organization and business.

Count I in substance alleges that plaintiff, prior to December 24, 1946, was organized for the sole purpose of marketing on a nationwide scale, direct to household users, certain sets of cooking utensils of plaintiff's own unique design and fabrication, especially adapted for waterless cooking, to be marketed under the name and trademark of "Cook-Master"; that defendant corporation was engaged in the steel manufacturing and fabricating business but had never manufactured or sold products of the type and design referred to; that plaintiff and defendant corporation entered into negotiations for the manufacture by defendant of said cooking utensils, especially and exclusively for plaintiff; that during said negotiations plaintiff instructed defendant as to the manner in which said utensils would be made; that as a result of said negotiations the parties agreed that the price to be paid by plaintiff to defendant for each set of cooking utensils manufactured would be a reasonable price, and a maximum of $90 for each of the first 100 sets, to be made as sample sets and used as demonstrators by the selling force to be employed by plaintiff, and that the price for all other sets to be manufactured would be a reasonable price, and a maximum of $45 per set; that to evidence said understanding and agreement, plaintiff and defendant corporation entered into a written offer and acceptance, as follows:

"December 24, 1946

Cook-Master, Inc. 1800 E. Olive Milwaukee, Wisconsin Attn: Mr. M.L. Markey Gentlemen:

This letter will confirm our understanding of this date, whereby we agree to manufacture for you exclusively the line itemized as follows:

1 — 1 quart Sauce Pan 20 gauge 1 — 2 quart Sauce Pan 20 gauge 1 — 3 quart Sauce Pan 20 gauge 1 — 4 quart Sauce Pan 19 gauge 4 — covers 24 gauge 1 — 6 quart dutch oven 18 gauge 1 — dome cover 24 gauge 1 — insert for 2 quart 24 gauge 1 — 6" skillet 16 gauge 1 — 10" skillet 14 gauge 1 — flat cover for 10 inch skillet 24 gauge 1 — 12-cup vacuum coffee maker

Above items to be made of 18-8 stainless steel.

This line shall be copyrighted under the name `Cook-Master' with the United States Patent Office and the 48 states, and we shall hold the copyrights and license you exclusively to use this name, and sell the products referred to above. In the event the name `Cook-Master' shall have already been taken, then another name shall be applied for which you select and which we agree to use.

We agree to make 100 sample sets in accordance with the above specifications and gauges, for your approval, and to be delivered to you on or about February 15th, 1947. Price of these samples shall be no more than $90.00 per set and shall be paid for as follows:

$5,000 with the order — Balance upon delivery

As per our conversation, we agree to accept your order for 2,000 sets as specified at a maximum price of $45.00 per set, ...


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