Kellis v. Livingston

YORK, P. J. Appellant in her complaint for damages for breach of contract alleged that on August 10, 1933, in consideration for valuable services rendered by her to respondents for approximately two years theretofore in experimenting with and developing the manufacture of corrective brassieres, and particularly the garment known as Lov-é Brassiere, an agreement was entered into whereby the respondents agreed to grant to her the exclusive right to purchase from them “Lov-é Brassieres manufactured by them at wholesale prices to be distributed by the plaintiff in the [557]City of Cleveland, Ohio, and surrounding territory, namely the states of Ohio, Indiana, Illinois, Michigan, Western Pennsylvania and Western New York."

It was further alleged that respondents agreed to sell the brassieres to appellant in wholesale lots at wholesale prices and appellant agreed to purchase the same for sale and distribution by her at wholesale or retail throughout the territory covered by the agreement, and that “the exclusive right of plaintiff as distributor to purchase and distribute the said product throughout the territory should continue so long as the plaintiff might desire and the defendants should engage in the manufacture and sale of Lov-é Brassieres." Also, that appellant entered upon the performance of the contract in the city of Cleveland, Ohio, and during the period from August, 1933, to July, 1936, duly performed all the terms and conditions of the agreement by devoting her entire time to advertising, exploiting, demonstrating and building up a demand for the garment throughout the territory covered by the agreement, and in so doing expended approximately the sum of $10,000; that she purchased from respondents a large quantity of the product which she sold and distributed throughout said territory and realized a profit of approximately $10,000; that on July 22, 1936, respondents wilfully and without cause gave appellant notice of termination of her exclusive right to purchase and distribute the brassieres throughout the territory mentioned, and in violation of their agreement with her, said respondents made sale of the said product and thereafter continued so to do to sundry merchants and other persons in the city of Cleveland and elsewhere throughout the said territory.

It was then alleged that by reason of the breach of said agreement by respondents, appellant suffered general damages in the sum of $100,000; that relying upon her agreement for the exclusive sale of the said brassieres, she also suffered damages in the amount of $3,000 which sum she expended in leasing and furnishing a storeroom in the said city of Cleveland; and that through the termination of her contract by the respondents she was forced to close her storeroom thereby suffering damages in the sum of $1875 on account of rental for the months of August to December, 1936, for which she became liable under her lease; or a total damage of $104,875.