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Keller v. Brunswick Corp.





APPEAL from the Circuit Court of Sangamon County; the Hon. J. WALDO ACKERMAN, Judge, presiding. MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 1, 1977.

On December 4, 1975, plaintiff filed a two-count complaint in the circuit court for the seventh judicial circuit, Sangamon County, seeking $200,000 damages plus costs on each count. In count I, plaintiff alleged that defendant violated the Wisconsin Fair Dealership Law (Wis. Stat. 1973, ch. 179, pars. 135.03, 135.04, 135.06) by failing to renew the parties' Mercury Marine franchise agreement, which was labeled a "direct sales contract," without substantially changing plaintiff's "competitive circumstances," and by failing to give plaintiff 90 days written notice of a proposal to franchise Illini Sporting Goods as a second Mercury Marine dealer in Sangamon County in October 1975. In count II, plaintiff alleged that the defendant violated its duty to renew plaintiff's franchise without substantial change in the franchise terms or in plaintiff's competitive circumstances.

On January 21, 1976, defendant filed a motion for judgment on the pleadings pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 45). Memoranda supporting and opposing the motion were filed and the court heard the arguments of counsel. On May 27, 1976, the court entered judgment granting defendant's section 45 motion. Plaintiff appeals that judgment.

As is typical in appeals from dismissals pursuant to section 45, uncontested, well-pleaded allegations of fact shall be, for the purposes of review, deemed to be true. Bulk Terminals Co. v. Environmental Protection Agency (1976), 65 Ill.2d 31, 357 N.E.2d 430; Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill.2d 93, 96, 187 N.E.2d 722.

The plaintiff, Lincolnland Boat Company, is a partnership engaged in the business of selling Mercury Marine Products at retail in Sangamon County, Illinois. The defendant, Brunswick Corporation, is a Delaware corporation engaged in the business of manufacturing and selling Mercury Marine Products at wholesale from its factory and office in Fond du Lac, Wisconsin. The facts upon which the complaint is based are as follows: On October 9, 1974, the parties entered into a written franchise agreement or contract which, by its terms, would terminate on August 31, 1975. The printed contract recited that it was entered into at Fond du Lac, Wisconsin, that shipments were to be made F.O.B. at Fond du Lac, Wisconsin, that all orders placed by plaintiff were subject to acceptance in Wisconsin by defendant, and that title to all goods sold and any shipping risks were to be passed to plaintiff upon delivery to the shipper in Wisconsin.

The clauses of the parties' contract pertaining to termination provided:


(a) The term of this contract shall be from the date of signing hereof by Seller until the 31st day of August of the following year, provided, however, that either party hereto may forthwith terminate this contract for cause due to breach hereof and may terminate same without cause at any time upon thirty (30) days written notice given to the other party. If Seller shall sell Products to Dealer after expiration or termination of this contract, such sale shall not be deemed a renewal or extension of this contract.

(c) Seller shall be under no obligation, either express or implied, to refranchise Dealer upon expiration of this contract or in the event of termination prior to expiration.

(d) Neither party hereto shall become liable to the other for loss, damage, expense, or investment of any kind whatsoever incurred on account of or arising, directly or indirectly, because of execution of this contract or in contemplation thereof or because of seller's failure to enter a new contract with Dealer or because of termination of this contract, all rights and claims of that nature being hereby unconditionally and irrevocably waived by both parties to this contract."

Another clause in the contract provided:

"11. INTERPRETATION. This agreement and all of its provisions are to be interpreted and construed according to the laws of the State of Wisconsin. Any provision of this contract which in any wise contravenes or is unenforceable under any law of the nation [or] of the state or states in which this agreement is effective shall be deemed separable and not to be a part of this agreement."

• 1 The general rule governing the construction of contracts is that, unless a contract is ambiguous, its meaning must be discovered in the words used. If a contract purports on its face to be a complete expression of the entire agreement, courts> should not insert terms about which the agreement is silent or which are contrary to the clear intention of the parties. National Bank v. West Construction Co. (1976), 41 Ill. App.3d 686, 689, 355 N.E.2d 43.

In the instant case, defendant contends that the parties' intention at the time the contract was entered into was that defendant was under no obligation to refranchise plaintiff after the expiration of the contractual term. Plaintiff, however, seeks to have this court distinguish that ...

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