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Hawthorn Mellody Farms Dairy, Inc. v. Rosenberg

APRIL 27, 1973.

HAWTHORN MELLODY FARMS DAIRY, INC., PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,

v.

BEN ROSENBERG, DEFENDANT AND COUNTERPLAINTIFF-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EUGENE DALY, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Although Hawthorn Mellody Farms Dairy, Inc. originally sued Ben Rosenberg, an independent milk vendor, the instant case, by stipulation of the parties, proceeded only on two counts of Rosenberg's counterclaim against Hawthorn. Judgment was entered in favor of Hawthorn at the close of Rosenberg's evidence.

Count I thereof alleged breach of oral contract to trade milk routes. Count III alleged breach of a written union contract to provide for route riders. Although the union contract was not exhibited with the counterclaim, it quoted the applicable provision:

"Processor to furnish route rider for all vendor routes purchased or sold after May 1, 1959, and also for prior vendors who request route rider service. Processor to pay for same, or be subject to penalty under Article 20; Paragraph 2."

Hawthorn denied all the allegations of Count I and admitted the existence of the union contract but denied liability regarding Count III.

On appeal Rosenberg contends (1) that the standard a trial court sitting without a jury must apply when ruling on a motion for judgment at the close of plaintiff's evidence is whether plaintiff established a prima facie case, (2) that he established a prima facie case for breach of written contract under Count III of the counterclaim, and (3) that he established a prima facie case for breach of oral contract under Count I of the counterclaim.

The evidence is summarized.

Anthony W. Christiano, President of the Milk Drivers' Union testified that Rosenberg was a member of his union in good standing. He defined "route rider" as an employee of the processor who relieves another driver one day each week. He further testified that the union contract contained a grievance procedure available to independent vendors but was uncertain whether Rosenberg had utilized this procedure regarding Hawthorn's failure to supply route riders at its expense. The provision of the union contract in question had been in effect for ten or fifteen years and had been enforced by the union although he could not recall specific instances.

Ben Rosenberg testified on his own behalf that between 1949 and 1970 he was an independent milk distributor. He had his own milk route, his own customers, and bought his own supplies from processors. His milk route consisted of two parts: approximately 80% was located in a racially changing area on the west side of Chicago and the remaining part was located in Skokie. Prior to the time relevant to the instant case (October 1964 — February 1967), he purchased milk at Twin Oaks Dairy and the Pure Milk Association. During the time he purchased milk from Twin Oaks he also worked in the plant one day each week and the company supplied a route rider for him on that day at company expense. No other processor had ever supplied him with a route rider at its expense.

Rosenberg further testified that in September of 1964 an agent of Hawthorn, Matt Eichhorn, approached him while he was doing his route. Eichhorn attempted to convince him to switch processors. According to Rosenberg, Eichhorn promised that Hawthorn would give him a good price on milk, would supply him with a spare truck if his broke down, and would supply him with route riders. He told Eichhorn he would think about the proposal and they would meet later.

According to Rosenberg, the two men met at a drugstore one week later. Eichhorn additionally offered him a week's supply of free milk if he would switch to Hawthorn. However, Rosenberg mentioned that he wanted to trade his west side route for one near Skokie. Rosenberg testified that Eichhorn stated that there would be "no problem so far as that [trading routes] is concerned. So Rosenberg agreed to switch to Hawthorn. They agreed to discuss the matter further at Hawthorn's office.

Rosenberg testified that on about September 23, 1964, a meeting was held in Edwin Dunmore's office at Hawthorn. In addition to Rosenberg and Eichhorn, William Schulz and Dunmore were present. At that time according to Rosenberg, Eichhorn reviewed the terms of the agreement they had reached including the provision for trading routes on a point for point basis. A point is equivalent to one quart of milk per week which is the method used in the business to determine the value of a milk route. Schulz and Dunmore agreed that there would be no problem and welcomed him to Hawthorn.

Beginning on October 1, 1964, except for several six gallon Norris containers of 2% milk which were unavailable at Hawthorn, Rosenberg testified that he purchased all his supplies from Hawthorn. Thereafter although he made no written requests and filed no grievance with Hawthorn, he made numerous oral requests of Eichhorn for route riders and for route change. He also testified that he made the same request of other officials of Hawthorn (Dunmore, Leroy Thomas and Vince Giacmino) but received no satisfaction.

Rosenberg also testified to the union pay scale for route riders and to the number of weeks he purchased his supplies from Hawthorn for the purpose of calculating the amount of his damages. On being prevented from testifying to the value of points on the west side of Chicago and in Skokie by the sustaining of the ...


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