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Berryman Transfer and Storage Company, Inc. v. New Prime

January 15, 2004

BERRYMAN TRANSFER AND STORAGE COMPANY, INC., PLAINTIFF-APPELLANT,
v.
NEW PRIME, INC., D/B/A/ PRIME, INC., DEFENDANT-APPELLEE.



Appeal from Circuit Court of Sangamon County No. 96CH205 Honorable Robert J. Eggers, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

PUBLISHED

In September 1996, plaintiff, Berryman Transfer and Storage Company, Inc. (Berryman), sued defendant, New Prime, Inc., d/b/a Prime, Inc. (Prime), seeking to enforce an August 1995 contract between the parties. In June 2001, Berryman filed its second-amended complaint.

In October 2002, following a bench trial, the trial court entered judgment in Prime's favor.

Berryman appeals, arguing that the trial court erred by finding that paragraph eight of the parties' contract was ambiguous and entering judgment in Prime's favor. We reverse and remand for the trial court to enter judgment in Berryman's favor and assess damages.

I. BACKGROUND

Because the parties are familiar with the evidence presented at the September 30 through October 1, 2002, bench trial, we review it only to the extent necessary to put the parties' arguments in context.

Berryman and Prime were both companies in the business of transporting goods via truck and brokering the transportation of goods. When Berryman acted as a broker, a customer (the shipper) paid Berryman to transport its goods. Berryman, in turn, found a contract carrier to transport those goods. Berryman made money when it found a contract carrier to transport the goods for an amount less than it had been paid by its customer. Berryman commonly referred to its customers as its "accounts."

In 1995, one of Berryman's accounts was Nichols Aluminum, Inc. (Nichols), located in Lincolnshire, Illinois. In August 1995, Berryman entered into a contract with Prime, pursuant to which Prime agreed to work as a contract carrier for Berryman. Paragraph eight of the parties' contract provided as follows:

"Carrier understands and agrees that [b]roker has put forth substantial effort and investment in order to develop its accounts and it will at no time during the term of this [a]greement, and for a period of one (1) year after the effective date of termination of this [a]greement, either directly or indirectly, attempt to solicit, divert, by-pass, back-solicit[,] or perform any services for compensation for any account of [b]roker which [b]roker has secured and has previously tendered to [c]arrier for transportation, unless [b]roker has given prior written authorization. In the event that [c]arrier violates the terms of this section, [c]arrier shall be liable to [b]roker for the normal and customary commission which [b]roker would have received for each individual movement, and [c]arrier shall deliver said amount to [b]roker within thirty (30) days after billing of the shipper."

Pursuant to the contract, Berryman tendered to Prime four shipments of Nichols's goods, from Nichols's Lincolnshire facility to a California destination. In early February 1996, Berryman agents were at Nichols's Lincolnshire facility when they noticed that Prime was independently shipping for Nichols. Berryman then pursued its right to commissions under paragraph eight of its contract with Prime, resulting in this lawsuit.

At the bench trial, Michelle Wagner, Nichols's materials manager, testified that Berryman had been a carrier for Nichols since around 1990. In 1995, Berryman was handling about 25% to 30% of Nichols's shipping from the Lincolnshire facility.

Wagner further testified that Nichols first hired Prime as one of its carriers in January 1996. She acknowledged that prior to that time, Nichols had paid Prime for shipping jobs as a "third[-]party payer." Wagner explained that some of Nichols's product was shipped to a Kentucky company, Worldsource, to be painted. Worldsource was then responsible for arranging the shipping of the painted product to Nichols's customers, even though Nichols covered the cost of that shipping. Worldsource had hired Prime to do some of its shipping of Nichols's product. As a result, between October 1994 and July 1995, Nichols paid Prime a total of $53,221.34 for shipping its goods from Worldsource to Nichols's customers.

Prime argued at trial that paragraph eight of the contract did not require Prime to pay Berryman a commission for shipping jobs Prime did for Nichols because ...


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