Opinion
No. 81-186
Decided February 12, 1982
1. Contracts — Parol Agreements — Not Binding Where letters to sales broker from paper manufacturer regarding the broker's right to represent the manufacturer's stationery product line in the Middle East did not contain the essential terms of the contract, not indicating that the broker was to be an exclusive broker for a five-year period, to allow parol evidence to supply the essential terms of the contract would circumvent the purpose of the Statute of Frauds. RSA 506:2.
2. Appeal and Error — Questions Considered on Appeal — Issues Not Before Court Where sales broker, on appeal from grant of summary judgment for manufacturer in breach of contract action brought by broker, raised issues not properly before the supreme court, supreme court would not address those issues.
3. Judgments — Summary Judgment — Issues of Material Fact Where letters to sales broker from paper manufacturer regarding the broker's right to represent the manufacturer's stationery product line in the Middle East did not contain the essential terms of the contract, not indicating that the broker was to be an exclusive broker for a five-year period, the trial court was correct in granting a motion for summary judgment because no disputed issues of material fact were presented to it. RSA 491:8-a (Supp. 1979)
4. Contracts — Validity — Generally Brokerage or agency agreements for indefinite, unspecified periods are terminable by either party at will, subject to the requirement of good faith.
Sullivan, Gregg Horton P.A., of Nashua (Sherman D. Horton, Jr., a. on the brief, and Marian A. Wait orally), for the plaintiff.
McLane, Graf, Raulerson Middleton P.A., of Manchester (Bruce W. Felmly a. on the brief and Mr. Felmly orally), for the defendant.
On this appeal, the plaintiff asserts that the Superior Court (Wyman, J.) erred in granting summary judgment to the defendant relying upon the Statute of Frauds, RSA 506:2. We affirm.
The plaintiff acted as a sales broker for a number of American manufacturers in the Middle East. Its president, Sayed Badr, asserted that by express oral agreement with Charles Wemyss, Senior Vice President of the defendant, the plaintiff was granted sole and exclusive rights for a minimum of five years to represent the defendant in the Middle East. After the plaintiff had acted as a broker for the defendant's "Campbell Stationery Product Line" for approximately two years, the defendant terminated the brokerage arrangement. Consequently, the plaintiff brought this action against the defendant for breach of contract.
Groveton Papers Co. asserted that the Statute of Frauds barred the plaintiff's action. The plaintiff responded that two letters written by one of the defendant's officers satisfied the requirements of RSA 506:2, which provides that no action may be brought on an agreement "that is not to be performed within one year from the time of making it, unless such promise or agreement, or some note or memorandum thereof, is in writing and signed by the party to be charged. . . ."
The letters to the plaintiff from the defendant regarding the plaintiff's right to represent the defendant's "Campbell Stationery Product Line" are as follows:
"November 12, 1975 Dear Sir:
The following terms apply to the export of Campbell products through your organization.
Price: 200 carton brackets will apply to all items purchased, Zone A.
Freight: FOB mill, truckload rate of freight allowed.
Cash Transaction: Irrevocable letter of credit Payable in U.S. funds
Limitations: Two truckloads per month (T/L = 40M or approximately 1000 cartons)
Commission: 5% on prices shown in Zone A price list
Very truly yours,
David Livingstone Vice President — Sales"
"March 11, 1977 Dear Sir:
Please be advised that as of this date the offer to your
company of Campbell Stationery products for export sale as contained in our letter of 12 November 1975 is withdrawn.
Campbell Stationery will no longer accept orders for its products from Badr Export Import, Inc. for either export or domestic distribution.
Very truly yours,
CAMPBELL STATIONERY
David Livingstone Vice President — Sales"
Pursuant to a motion for summary judgment filed by the defendant, the trial court determined that the above letters failed to meet the requirements of the Statute of Frauds, because they "neither [included] nor [referred] to many essential elements of the alleged contract . . . including exclusivity and term of brokerage." In granting the defendant's motion for summary judgment, the trial judge concluded that to allow parol evidence for the purpose of establishing material elements of the contract would present the danger the statute was designed to prevent. We agree. The letters do not contain the essential terms of the contract. They do not indicate that the plaintiff was to be an exclusive broker for a five-year period. See Maisch v. Cobb, 76 N.H. 62, 63, 79 A.2d 489, 498 (1911); Chellis v. Grimes, 72 N.H. 337, 339, 56 A. 742, 743 (1903). To allow parol evidence to supply the essential terms of the contract would circumvent the purpose of the Statute of Frauds. See 2 A. CORBIN, CONTRACTS 27, at 782-84 (1950).
The plaintiff also argues that the less stringent "statute of frauds" provision of the Uniform Commercial Code, RSA 382-A:2-201, or, in the alternative, the doctrine of equitable estoppel, should be applied in this case. We need not address these issues, as they are not properly before us. See Progressive Survey, Inc. v. Pearson, 120 N.H. 58, 61, 410 A.2d 1123, 1125 (1980); Sperl v. Sperl, 119 N.H. 818, 821, 408 A.2d 422, 424 (1979).
[3, 4] On the record before us, we conclude that the trial court was correct in granting the motion for summary judgment because no disputed issues of material fact were presented to it. See Armand Engineering Co., Inc. v. Adrien A. Labrie, Inc., 121 N.H. 107, 110, 427 A.2d 15, 16 (1981); RSA 491:8-a (Supp. 1979). Brokerage or agency agreements for indefinite, unspecified periods are terminable by either party at will, subject to the requirement of good faith. Crowe v. Trickey, 204 U.S. 228, 239 (1907); Buttorff v. United Electronic Laboratories, Inc., 459 S.W.2d 581, 585-86 (KY. App. 1970); 2 A. CORBIN, CONTRACTS 446, at 552 (1950).
Affirmed.