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ROSENSTEIN v. IDA PRODUCTS COMPANY

August 30, 1973

FRED ROSENSTEIN D/B/A ADVANCE MERCHANDISERS, PLAINTIFF AND COUNTER-DEFENDANT,
v.
IDA PRODUCTS COMPANY, A MICHIGAN CORPORATION, DEFENDANT AND COUNTER-PLAINTIFF.



The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes on the defendant's motion for summary judgment as to the complaint and counterclaim.

This is a diversity of citizenship action seeking damages for the breach of a contract by the defendant. The plaintiff alleges that damages exceed $10,000 exclusive of interest and costs.

The plaintiff is Fred Rosenstein, d/b/a Advance Merchandisers, a resident of Chicago, Illinois, who transacts business as a distributor of building products within the City of Chicago, Illinois. The defendant is IDA Products Company ("IDA"), a corporation organized and existing pursuant to the laws of the State of Michigan, which is in the business of manufacturing, distributing and selling windows and doors to the construction industry in the City of Detroit, Michigan.

The plaintiff alleges the following facts in the complaint:

  1.  On or about October 10, 1972, the plaintiff
      and defendant did enter into an oral
      agreement whereby the defendant did agree to
      terminate its existing distributorship within
      the State of Illinois and Chicago area, to
      appoint the plaintiff, or a corporation to be
      organized by him, as a sole distributory
      within the State of Illinois and adjoining
      states surrounding the Chicago metropolitan
      area and to pay to the plaintiff its usual
      and ordinary commission for all sales made by
      plaintiff of defendant's product. The
      plaintiff, in consideration of the above, did
      then agree to act as defendant's distributor,
      to use reasonable efforts to sell defendant's
      product line, and to obtain larger warehouse
      facilities within Cook County, Illinois to
      service customers of defendant's product
      line.
  2.  Both parties partially performed certain
      acts. The plaintiff did obtain, with the
      approval of defendant, adequate warehouse
      facilities, and the defendant did notify its
      then existing distributor that such
      distributorship would be terminated.
  3.  The defendant did breach the said agreement
      by repudiating same on or about February 2,
      1973 at which time defendant advised
      plaintiff that it did not intend to abide by
      its agreement to appoint plaintiff as its
      distributor.
  4.  By reason of the said breach of contract by
      the defendant, plaintiff has suffered damages
      in the amount of $180,000 which sum
      represents the reasonable profits plaintiff
      could have made during a reasonable period of
      time when such distributorship would have
      remained in effect.

The defendant IDA in response to the instant complaint alleges the following facts in its amended counterclaim:

  1.  There is a diversity of citizenship between
      the parties.
  2.  The amount in controversy exceeds $10,000
      exclusive of interest and costs.
  3.  Commencing in October, 1972 to and including
      February, 1973 defendant, counter-plaintiff
      sold and delivered to plaintiff,
      counter-defendant certain goods and
      merchandise which goods and merchandise were
      accepted by plaintiff counter-defendant.
  4.  There is due and owing to the defendant
      counter-plaintiff for the goods sold and
      delivered the sum of $42,561.11 plus interest
      thereupon for ...

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