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Lee Shell Co., Inc. v. Model Food Center

AUGUST 27, 1969.




Appeal from the Circuit Court of Cook County; the Hon. DAVID CANEL, Judge, presiding. Reversed and remanded.


As Modified on Petition on Rehearing.

Plaintiff's complaint alleged an oral contract whereby all defendants agreed to purchase $326,000 worth of store fixtures and equipment in exchange for plaintiff's promise to supply store fixtures and equipment and draw a layout for the equipment. Plaintiff alleged breach of the oral contract and claimed loss of profits in the amount of $85,000. In the alternative to the loss of profits, the plaintiff alleged in Count II that in reliance upon the assertion of all five defendants to purchase the said equipment, plaintiff did not accept business which it otherwise would have accepted and suffered $85,000 in damages for lost business. (This presumably was abandoned as the jury was not instructed on this count.) In Count III of the Complaint, plaintiff alleged that the five defendants "wrongfully appropriated" layout plans owned by plaintiff and sought damages in the sum of $25,000 for the value of the plans. This Count was not pleaded as an alternative to any other count. In Count IV, plaintiff alleged that it expended services in the preparation of the layout plans and asked damages in the value of $30,000. Count IV was not pleaded in the alternative to any other Count. Defendants' answer denied substantially all the material allegations in plaintiff's complaint. Defendants did admit however, that they requested plaintiff to furnish plumbing and electrical plans to defendants' architect for the purpose of completing the architectural plans. Instructions to the jury covered breach of express contract, implied contract, and "wrongful appropriation." The jury returned two verdicts in favor of plaintiff, each giving plaintiff full recovery under all 3 Counts, one verdict in the sum of $140,000 against the four specifically named individual defendants, and one verdict awarding the plaintiff $140,000 in damages against all defendants. The court entered judgment in favor of plaintiff with respect to only one of the jury's verdicts, the one awarding plaintiff $140,000 against all of defendants.

Although defendants urge a myriad of issues for review, not all of them need be discussed in resolving this appeal. A principal issue, is whether the record supports the existence of an oral agreement as alleged by plaintiff.

Plaintiff was a corporation engaged in the business of manufacturing and distributing counters, shelving and refrigerated display cases for the merchandising requirements of supermarkets, shopping centers, drugstores, restaurants, liquor stores and other retail establishments. In the furtherance of its business, plaintiff also provided design and planning services for its customers and employed engineers and experts.

Defendant, Model Food Center, Inc., had as its principal and controlling directors, officers and shareholders, the individual defendants in this litigation.

I.W. SHELL, for the plaintiff, testified as follows:

He was president of plaintiff. He first met the defendants in 1950. In November, 1957, Weigley telephoned him and related that his family purchased a tremendous piece of land and were contemplating building a large supermarket to capture all the retail business in the neighborhood. Pursuant to this telephone conversation Weigley, Marshall and the Nemeths arrived the next morning at plaintiff's place of business and met with Shell. Weigley said he wanted to put in a diversity of departments so that he could do a $6,000,000 volume of business a year. Shell said, "This is fine, I would love it, but I can't do this kind of work for you, I can't — it will take months to develop a dream of this nature, and I would be very much interested provided, of course, that you will agree to buy the equipment, that is my business, and when I get through with the plans, if you accept my plans subject to normal revisions, why, you will buy the equipment." Mr. Weigley and Mr. and Mrs. Nemeth said "of course." After this conversation the defendants and Shell visited various floors of the warehouse, factory and showrooms and viewed plaintiff's products. They discussed in detail many subjects relating to the problems, methods and vicissitudes of operating the type of venture proposed by the defendants.

Two days later the same parties met again and Shell told them he had calculated that the cost of installing the fixtures and equipment for a store of 44,000 square feet, they wanted to build, would be approximately $480,000. Weigley told Shell to start work as soon as possible, because defendants decided Shell's proposition would be acceptable and he also said that if the defendants accepted plaintiff's plans there would be no question about who was going to install the equipment.

Shell drew a plan for various departments (e.g. liquor, meat, bakery, jewelry, dry goods, restaurant, etc.) and in January, 1958, these plans were substantially completed. He and Weigley met and examined the plan, which was a layout of the store showing the various departments, locations, fixtures and equipment. Weigley "wanted to know what the price was then." The following then ensued:

Shell: ". . .

"By the time I had actual figures, and I gave him (Weigley) the figure of ____ I gave him a proposal of $326,000.00, this was the final figure, which he accepted."

Defendant's counsel: "I object to that, `he accepted.'"

Plaintiff's counsel: "What did he say?"

The Court: "What did he say, he accepted what?"

Shell: "He accepted the blueprints."

Plaintiff's counsel: "No, what did he say?"

Shell: "He said that the blueprints are now satisfactory, `and now I will sign the contract, make it ready.'" . . .

Shell subsequently prepared a contract and a week later went to see Weigley.

Plaintiff's counsel asked Shell:

Q. "You prepared an agreement as well?"

A. "Yes."

Q. "Did you send that to him?"

A. "Yes."

At this point in the trial, plaintiff placed in evidence an artist's renderings of the delicatessen, frozen food department, snack shop, dry goods, drugstore, jewelry, grocery, etc., and Shell testified to the function and description of the fixtures and equipment to the court and jury. After this phase of the trial, the following ensued:

Plaintiff's counsel: "All right. Did you give this plan to Mr. Weigley?"

Shell: "To Mr. Weigley, yes, sir."

Plaintiff's counsel: "He received it ...

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