The opinion of the court was delivered by: LEVET
Motion is made by the plaintiff for summary judgment and the defendant counters by motion for similar relief.
The defendant, Empire Box Corporation, is a Delaware corporation which manufactures paper cartons and containers in a plant located at Garfield, New Jersey.
Prior to May 1951, the defendant had done no business with the Pepsi-Cola Company which then owned seventeen bottling plants, of which sixteen are located East of the Mississippi River and one in Houston, Texas. Other plant owners are licensed to bottle Pepsi-Cola and they are referred to as 'franchise plants.' Raw materials suppliers to the Pepsi-Cola bottling plants must first obtain authorization or license from the Pepsi-Cola Company to imprint its trademark and trade-name on the goods to be sold, including cartons, in which the bottles are contained.
In May 1951, Glick, the plaintiff herein, brought to one Ted W. Ross, then vice-president in charge of sales of the defendant, Empire Box Corporation (hereafter called 'Empire'), samples of cardboard carriers which competitors of the defendant were already selling to Pepsi-Cola bottlers. Glick explained to Ross the various tests to which Pepsi-Cola would but any sample carriers. On May 17 or 18, 1951, Glick apparently made some arrangement with Ross. Following the conversation of May 17 or 18, 1951, Glick arranged to introduce Messrs. Klein, president of the defendant, Empire, and Ross, vice-president, to the officials of the Pepsi-Cola Company, which introduction occurred on May 22, 1951. Following this occasion, Messrs. Klein, Ross and Glick conferred. A few days later, Ross submitted to Glick a letter dated May 31, 1951, which purported to incorporate the oral arrangement. Glick wanted the word 'six' in front of 'bottle carton requirements' eliminated. This was done by a letter dated July 2, 1951, signed personally by Klein, Glick signing by way of acceptance. This letter provides in part as follows:
'On all orders received from the Pepsi-Cola Bottling Plants outside of the Metropolitan Area, where you are not able to personally solicit and service the business, the rate of commission will be 2%.
'On all orders received from Pepsi-Cola Bottling Plants in the Metropolitan Area where you will actively solicit and service such orders, the rate of commission will be 4%.
'If and when our Carton is accepted you should then give us a list of accounts which you will call on personally, and if we approve that list then during the period of this relationship you will receive 4% on such orders.'
Pursuant to a letter dated December 27, 1951, the Pepsi-Cola Company authorized the defendant to use the Pepsi-Cola trademark on carriers. Prior to the written authorization of December 27, 1951, and on August 29, 1951, the Pepsi-Cola Company had given a sample order of 200 carriers to be delivered to a company-owned plant in Jersey City, New Jersey. Thereafter, Glick visited Pepsi-Cola's main office on West 27th Street, New York, N.Y. and company-owned plants in Long Island City and fostered the good-will of defendant with the Pepsi-Cola Company. As a result of the sponsorship by the home office of Pepsi-Cola and the Long Island City plant, defendant supplied carriers to six other company-owned plants located in Alexandria, Virginia; Jersey City, New Jersey; Nashville, Tennessee; Pittsburgh, Pennsylvania; Teterboro, New Jersey; Agawam, Massachusetts; and Milwaukee, Wisconsin. In addition, the defendant, through its salesmen, sold and delivered carriers to 34 so-called 'franchise plants.' A plant in South Bend, Indiana, which plaintiff appears to have believed was owned by the defendant, but which actually was owned by an Indiana corporation and was operated under the same name as the defendant, sold cartons to the company-owned plants at Nashville, Tennessee and Pittsburgh, Pennsylvania, and to a great number of franchise plants which were not solicited nor serviced by Glick.
The defendant, Empire, paid Glick 4% on all carriers it sold to the company-owned plants and 2% on carriers it sold to franchise plants. Empire Box Corporation of South Bend, the Indiana corporation, paid plaintiff commissions at the same rate.
On October 10, 1952, the defendant, Empire, wrote a letter, signed by its president, Stanley J. Klein, in which it advised Glick that it wanted to terminate the relationship between the parties, the actual words used being 'we want to terminate your employment.' Out of this contractual situation and as a result of the October 10, 1952, letter, this action arose.
Plaintiff pleads three causes of action:
(1) The first asks recovery on the letter dated July 2, 1951;
(2) The second alleges an oral agreement entered into on May 22, 1951, to pay brokerage commissions; and further that the oral agreement was ...