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Vandevier v. Mulay Plastics





Appeal from the Circuit Court of Cook County; the Hon. Louis A. Wexler, Judge, presiding.


Plaintiff, Robert Vandevier, a manufacturer's representative, brought suit against the defendant, Mulay Plastics, Inc., for commissions due on the sale of parts manufactured by defendant and sold to customers solicited and serviced by plaintiff. At the conclusion of plaintiff's case, the trial court granted defendant's motion for a directed verdict. Plaintiff appeals the trial court's ruling, contending that the decision was against the manifest weight of the evidence. Specifically, plaintiff contends that all of the evidence presented supports the conclusion that defendant agreed to pay plaintiff a 5% commission on jobs he solicited for as long as these jobs ran and that this obligation was never terminated or modified. We affirm.

In 1971, the parties entered into an oral agreement. Defendant agreed to pay plaintiff a commission on the sale of parts manufactured by the defendant to customers solicited and serviced by the plaintiff. The terms of this oral agreement concerning the percent and duration of the commission payments due plaintiff constitute the subject of this dispute between the parties.

Plaintiff testified that Sam Mulay (Mulay), president of defendant corporation, promised that plaintiff would receive a 5% commission on all accounts he solicited and serviced and that he was to receive these commissions as long as the parts ran. Plaintiff's deposition testimony, however, indicated that the agreement provided that his commissions would terminate when he stopped servicing accounts for the defendant. Plaintiff worked as a manufacturer's representative (rep) for defendant until 1978. During this seven-year period, plaintiff received commission checks ranging from 1% to 5%, the majority of which were for less than 5%. Plaintiff complained about his commissions regularly, but Mulay's only response to his complaints was "take it or leave it." He cashed all commission checks but one and continued to solicit new business and to service existing accounts throughout this period. In July 1978, Mulay terminated the relationship with plaintiff. His final commission check was issued in August 1978. After his discharge, plaintiff no longer serviced any accounts for the defendant.

Mulay, called as an adverse witness, contended that he never agreed to a 5% commission. He told the plaintiff that it would be impossible to guarantee a 5% commission on any account, that the commissions paid would depend on the price he was able to secure from the customer and that plaintiff's commission could vary from 5% on down to 1%. Plaintiff never complained about his commission checks. Mulay stated that there was no agreement concerning how long commissions would be paid. In July 1978, Mulay told the plaintiff that he was not servicing the accounts properly and that he thought it best that plaintiff no longer represent defendant.

William Anderson, also a manufacturer's representative, testified that the custom in the industry is to pay reps a 5% commission. This commission is paid as long as a particular job runs. During cross-examination, Anderson stated he had never been a rep for defendant and he was not familiar with its practice concerning compensation to reps. He gathered his information on the industry custom by talking with six personal friends who are reps.

Another manufacturer's representative, John Johnston, testified on plaintiff's behalf. Johnston stated that it is customary for reps to receive 5% commissions which are usually paid as long as a specific job is run by a manufacturer. He stated on cross-examination that he has accepted commissions of less than 5%. He was not aware of defendant's policy regarding commissions paid to reps. During redirect examination, Johnston stated that in the absence of an agreement providing for commissions after termination, it is customary to receive commissions from 90 days after termination up to the length of production of a part for a customer.

A third manufacturer's representative, Robert Bishop, testified that 5% is the standard commission rate for reps. As long as the parts are produced or as long as the customer places orders with the manufacturer, the rep continues to receive commissions. Commissions due after termination are not subject to a variation of this custom unless agreed to by both parties. On cross-examination, Bishop stated that there is nothing to prevent the parties from contracting for less than 5% commission. If he did not agree with a preposed reduction in his commission, he would pull his accounts and take them to another manufacturer.

Diane Peszynski, a former employee of defendant corporation, testified that while in defendant's employ she typed a memorandum setting the amount of commissions to be paid the plaintiff on five particular jobs. Per instructions given to her, she typed in a 5% commission due on these jobs. That figure was later scratched out by someone other than the witness and a 5% commission was written in next to four of the jobs and a 3% commission was indicated for the fifth job. On cross-examination, the witness stated she could not remember whether the 5% figure which was crossed out was a typographical error.

At the conclusion of plaintiff's case, the defendant moved for a directed finding on the grounds that plaintiff had not presented a prima facie case. The trial court granted the motion noting that it had considered all the evidence, passed on the credibility of the witnesses, drawn reasonable inferences from the testimony and considered the weight and quality of the evidence. Plaintiff appeals the trial court's ruling.


• 2 Plaintiff contends that the trial court erred in granting defendant's motion for a directed finding at the close of plaintiff's case. The decision of the trial court granting judgment at the close of plaintiff's case will not be reversed unless it is contrary to the manifest weight of the evidence. (Kokinis v. Kotrich (1980), 81 Ill.2d 151, 154, 407 N.E.2d 43.) When ruling on a motion for judgment at the close of plaintiff's case in a non-jury case, the court must determine whether plaintiff has made a prima facie case by presenting at least some evidence on every essential element of his cause of action. (81 Ill.2d 151, 154, 407 N.E.2d 43.) If plaintiff fails to do so, the defendant is entitled to judgment as a matter of law. (81 Ill.2d 151, 154-55, 407 N.E.2d 43.) When a prima facie case has been presented, the court must consider all of the evidence, including evidence favorable to the defendant, pass on the credibility of witnesses, draw reasonable inferences from the testimony, and generally consider the weight and quality of the evidence to determine if a prima facie case still exists. (81 Ill.2d 151, 154, 407 N.E.2d 43.) After the weighing process, if there is sufficient evidence to establish that plaintiff's prima facie case remains, the court should deny the defendant's motion and proceed as if the motion had not been made. 81 Ill.2d 151, 155, 407 N.E.2d 43.

Plaintiff argues that he presented some evidence on all of the essential elements of a breach of contract action. He maintains that after the weighing process, a prima facie case still remains because there was no evidence that the parties agreed to a commission of less than 5% or that defendant's obligation to pay commissions was terminated. Defendant contends that plaintiff did not present a prima facie case because he failed to establish the existence of an enforceable obligation between the parties. Specifically, defendant contends that there was no meeting of the minds between the parties regarding the percent of commission or the duration of the commission payments, both material terms of the contract.

• 2 In a breach of contract action, plaintiff must establish an offer and acceptance, consideration, the terms of the contract, plaintiff's performance of all contractual conditions required of him, the defendant's breach of the terms of the contract and damages resulting from the breach. (Martin-Trigona v. Bloomington Federal Savings & Loan Association (1981), 101 Ill. App.3d 943, 946, 428 N.E.2d 1028.) Plaintiff shoulders the burden of proving every material term of the contract. (Jaffe Commercial Finance Co. v. Harris (1983), 119 Ill. App.3d 136, 141, 456 N.E.2d 224.) It is well established that in order for an oral contract to be binding and enforceable, its terms must be definite and certain. (O'Neil & Santa Claus, Ltd. v. Xtra Value Imports, Inc. (1977), 51 Ill. App.3d 11, 14, 365 N.E.2d 316.) Where it appears that the language used or the terms proposed are understood differently by the ...

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