78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). The federal rules merely require the claimant to put the defendant on sufficient notice as to the nature of the claim. This court has ruled that Skinner has set forth allegations sufficient to maintain its contract claim. Therefore, dismissal of Count II is unwarranted.
C. Count III -- Wrongful Termination
Skinner asserts that industry custom and usage permitted either party to terminate the employment contract with sixty-days notice prior to the start of the next selling season. According to Skinner, Shirley violated this industry standard by terminating Skinner without cause, without notice, and within sixty days of the new selling season. Despite Shirley's contention that the allegations are inadequate, Skinner has alleged the existence of industry custom and usage which governs their contractual arrangement. In the absence of an agreement to the contrary, persons engaged in the same industry are presumed to have contracted with respect to industry custom and usage. Barry Gilberg, Ltd. v. Craftex Corp, 665 F. Supp. 585, 591 (N.D.Ill. 1987); Fifteenth Ave. Christian Church v. Moline Heating and Constr. Co., 131 Ill. App. 2d 766, 769, 265 N.E.2d 405, 408 (3d Dist. 1970). As a consequence, the particular customs and usages of the industry will be taken into account when interpreting the contract. Barry Gilberg, Ltd., 665 F. Supp. at 591. Skinner's allegations that Shirley violated industry custom by terminating the employment contract on May 19, 1988, are sufficient to survive the motion to dismiss.
D. Count IV -- Illinois Sales Representatives Act
In Count IV, Skinner alleges that Shirley violated paragraph 2252 of the Illinois Sales Representatives Act by failing to pay commissions that were due at the time of termination.
Pursuant to the Act, a sales representative is entitled to all unpaid commissions within thirteen days of termination. Ill.Rev. Stat. ch. 48, para. 2252 (1987). Other than the bald assertion of nonliability to Skinner for unpaid commissions, Shirley has failed to come forward with any legally supportable or otherwise persuasive argument for dismissal. Therefore, this court declines to dismiss Count IV.
E. Count V - Recoupment of Expenses
Skinner also seeks to recoup the expenses it incurred over the course of its employment relationship with Shirley. Skinner states that it expended considerable amounts of money in promoting and selling Shirley's products and that the alleged breach of contract prevented it from recouping these expenses. In support of its claim, Skinner relies on P.S. & E. Inc. v. Selastomer Detroit, Inc., 470 F.2d 125 (7th Cir. 1972). Skinner's reliance on that case is misplaced. In P.S. & E. Inc., the Seventh Circuit held that when an employment contract is terminated prematurely, the aggrieved party may be able to recover the start-up expenses that it did not have time to recoup. Id. at 128; see also First Commodity Traders, Inc. v. Heinold Commodities, Inc., 591 F. Supp. 812, 823 (N.D.Ill. 1984), aff'd, 766 F.2d 1007 (7th Cir. 1985).
By the time Shirley terminated the contract in 1988, Skinner had been successfully representing its products for over a decade. Cf. Superior Concrete Accessories v. Kemper, 284 S.W.2d 482, 492 (Mo. 1955) (twelve years of performance under an agency contract provided agent with sufficient opportunity to recoup its investment). Unpersuaded that Skinner did not have an adequate amount of time to recoup its initial expenses, this court dismisses Count V.
F. Count VI -- Unjust Enrichment
In order to assert a claim for unjust enrichment, the plaintiff must allege that the defendant voluntarily accepted a benefit which, under the circumstances, would be inequitable for him to retain without compensation. Premier Elec. Constr. Co. v. LaSalle Nat'l Bank, 132 Ill.App.3d 485, 496, 477 N.E.2d 1249, 1257, 87 Ill. Dec. 721 (1st Dist. 1984). Skinner's unjust enrichment claim revolves around the alleged appropriation of its customer lists and goodwill by Shirley. Pointing to the painstaking efforts required to develop its customer base and contacts in the industry, Skinner argues that it would be unjust for Shirley to profit without compensating Skinner for its efforts. In response, Shirley claims that Skinner is not entitled to compensation because Skinner incurred the expenses with the hope of achieving an economic benefit. Although it is true that Skinner cultivated its market so that it could sell Shirley's products successfully, Shirley is not thereby entitled to freely exploit that market and avoid paying Skinner. By alleging that Shirley received a benefit from Skinner, and that it was inequitable for Shirley to retain that benefit without payment, Skinner has adequately stated a claim for unjust enrichment.
Shirley also argues that the existence of an express contract between the parties prevents Skinner from asserting a claim under an implied contract theory. Unfortunately for Shirley, a party who asserts a claim pursuant to an express contract is not automatically precluded from asserting a separate claim for unjust enrichment. See Braman v. Woodfield Gardens Assocs., 715 F. Supp 226, 229 (N.D.Ill. 1989). Rule 8(e)(2) of the Federal Rules of Civil Procedure provides that "[a] party may set forth two or more statements of a claim . . . alternately or hypothetically, either in one count . . . or in separate counts . . . . A party may also state as many separate claims . . . as the party has regardless of consistency . . . ." Fed.R.Civ.P. 8(e)(2). Pursuant to rule 8(e)(2), Skinner may raise alternative claims for breach of contract and unjust enrichment.
For the foregoing reasons, this court grants defendant's motion to dismiss with respect to Count V. Defendant's motion is denied with respect to the remaining counts. However, any contract claims that accrued more than five years prior to the initial filing of the complaint are barred by the statute of limitations.
IT IS SO ORDERED.
Dated: October 11, 1989