Opinion
6-14-1956
Dorothy GLANE and Winifred Snyder, Plaintiffs-Appellants, v. GENERAL MILLS, Inc., a Delaware Corporation, et al., Defendants-Respondents.* Civ. 21336.
Gibson, Dunn & Crutcher, Henry F. Prince, Richard H. Wolford, Los Angeles, for respondents.
Dorothy GLANE and Winifred Snyder, Plaintiffs-Appellants,
v.
GENERAL MILLS, Inc., a Delaware Corporation, et al., Defendants-Respondents.*
June 14, 1956.
Hearing Granted Aug. 8, 1956.
Shacknove & Goldman, Los Angeles, for appellants.
Gibson, Dunn & Crutcher, Henry F. Prince, Richard H. Wolford, Los Angeles, for respondents.
SHINN, Presiding Justice.
Plaintiffs appeal from a judgment of dismissal based on an order sustaining, without leave to amend, defendant General Mills' demurrer to their second amended complaint. We are of the view that said complaint does not state a cause of action against General Mills and that the court did not err in denying leave to amend.
What happened is as follows: Prior to 1945, plaintiffs were employed by General Mills. On November 12, 1945, plaintiff Glane wrote to an employee of General Mills a letter which is the basis of the instant action. The letter stated that both plaintiffs were working on a promotional idea directed to girls between the ages of 9 and 14 years. The purposes of the idea were to teach good health habits, stimulate girls' interest in cooking, give girls actual cooking experience and to promote the sale of General Mills' products. Plaintiffs proposed to prepare a packaged kit which would contain a cooking apron, kit and potholders, an illustrated recipe book which would be written by plaintiffs, and small packages of various products manufactured by General Mills, such as flour, Bisquick, pancake flour, cake mix, etc. Plaintiff Glane also suggested that the kit might contain a square pan, a muffin tin, a set of plastic graduated measuring cups and measuring spoon, a signed membership card which the girls could mail to Martha Metade and Betty Crocker in order to get further recipes, and a membership emblem the girls could wear on their aprons. Plaintiff Glane estimated the cost of the kit at $2.40 and suggested a selling price of $2.95. The letter concluded: 'If you are interested in this idea we would naturally expect to have a conference with you personally on this matter. We would be glad to send you a sample kit which we are now working up if you would like to have us do so.'
Nothing further happened for at least seven years, until 1953 and 1954, when General Mills began manufacturing, distributing and selling a Betty Crocker Junior Baking Kit which, plaintiffs contend, copies and uses the original format and idea out-lined in the above-mentioned letter sent to General Mills by plaintiff Glane. Whereupon plaintiffs filed the present action.
Plaintiff's original complaint attempted to state causes of action for misappropriation of literary property, infringement of common law copyright, for breach of contract and for an accounting. Under the misappropriation and infringement theory, which sounds in tort, plaintiffs were required to allege their ownership of a protectible property interest, unauthorized copying of their material by General Mills, and damage resulting to them through the unauthorized copying. Golding v. R.K.O. Pictures, Inc., 35 Cal.2d 690, 221 P.2d 95. It was necessary for plaintiffs, in order to show that they owned a protectible property interest, to show the originality of their idea and format; Golding v. R.K.O. Pictures, Inc., supra, 35 Cal.2d 695, 700, 221 P.2d 97, 100; Stanley v. Columbia Broadcasting System, 35 Cal.2d 653, 663, 221 P.2d 73, 23 A.L.R.2d 216; and that the protectible portions of their proposed kit and the kit manufactured by General Mills were similar. Stanley v. Columbia Broadcasting System, supra. Proof of substantial similarity between the two would give rise to an inference of both General Mills' access to plaintiffs' format (though this is not in question here) and copying by General Mills. Kovacs v. Mutual Broadcasting System, 99 Cal.App.2d 56, 221 P.2d 108. The questions of originality, similarity and copying are questions of law, in the first instance, and may be determined by the court upon demurrer. Code Civ.Proc. § 426(3); Weitzenkorn v. Lesser, 40 Cal.2d 778, 256 P.2d 947.
After a demurrer to the complaint was sustained, plaintiffs abandoned the tort theory of misappropriation and infringement, and filed a first amended complaint which attempted to state causes of action for breach of contract and for an accounting. It is not clear whether plaintiffs were alleging an express or an implied contract.
After a demurrer to their first amended complaint was sustained, plaintiffs filed a second amended complaint (to be referred to as the complaint), which likewise attempted to state causes of action for breach of contract and for an accounting. It alleged that in 1945 plaintiffs prepared an original format, reduced to writing, for the manufacture and sale of a children's baking kit containing prepared and packaged baking mixes, baking pans, a cookbook, etc. It also alleged that prior to November 12, 1945, plaintiffs wrote to General Mills, informing General Mills that they had originated an idea and format which could be valuable to General Mills; that negotiations were entered into between the parties, and that 'in furtherance thereof, plaintiffs submitted to defendants the aforesaid original format incorporating plaintiffs original ideas; said submission to defendants by plaintiffs was under and pursuant to an implied agreement, and it was so understood by plaintiffs and defendants, that if defendants used plaintiffs' format * * * defendants would pay to plaintiffs the reasonable value thereof * * *.' It further alleged that during the years 1953 and 1954 General Mills did use plaintiffs' format 'which had been submitted to the said defendants at their special instance and request' and that 'although plaintiffs did not know that defendants had decided to accept plaintiffs' offer with respect to said idea by making use of said idea, plaintiffs expected, intended and understood that any use made by defendants of plaintiffs' idea was to be made pursuant to the implied agreement reached between plaintiffs and defendants.'
Plaintiffs contend that they have stated sufficient facts to constitute a cause of action against General Mills on either of two theories, namely, an express contract and an implied-in-fact contract. There are a number of reasons why the first of these contentions is without merit. Although the complaint refers to plaintiff Glane's letter, albeit somewhat ambiguously, as 'the agreement under which the aforesaid format was submitted to defendants', it is clear from the language which we have already quoted that the complaint does not allege an express contract. It alleged that plaintiffs' format and idea were submitted to General Mills at its special instance and request, that the letter of November 12, 1945 was sent to General Mills in furtherance of negotiations between plaintiffs and General Mills, and that plaintiffs submitted their idea and format 'under * * * an implied agreement * * * that if defendants used plaintiffs' format * * * defendants would pay to plaintiffs the reasonable value thereof * * *.' This language strongly suggests an attempt to state a cause of action against General Mills based upon a common count. But even if this were not the case, there are several insurable objections to plaintiffs' theory of express contract.
It was alleged that plaintiff Glane's letter was sent to General Mills in the course and furtherance of negotiations between the parties. And the so-called negotiations consisted only of plaintiffs' attempt to interest General Mills. Preliminary negotiations do not, of themselves, give rise to contractual liability. As the court said in Dillingham v. Dahlgren, 52 Cal.App. 322, 329, 198 P. 832, 835: "The preliminary negotiations leading up to the execution of a contract must be distinguished from the contract itself. There is no meeting of the minds of the parties while they are merely negotiating as to the terms of an agreement to be entered into." See, also, Van Hoosen v. Briscoe, 85 Cal.App. 746, 749-750, 259 P. 1115. The letter itself cannot be construed as an express contract between the parties because it was the purely unilateral act of the plaintiffs. The letter concluded with a request to hear from General Mills if General Mills was interested in the idea and format. At most it was a vague offer to General Mills to enter into some business arrangement. But, assuming for the moment that it was an offer of the essentials of a contract, the letter imposed no obligation unless accepted according to its terms. Civ.Code, § 1550 (2); Civ.Code, § 1565. There was no acceptance of the offer by General Mills. This is admitted by plaintiffs in their opening brief, in which they state: 'Respondents evinced great interest in the kit, but informed Appellants that they could not use it at that time. Appellants heard nothing further from Respondents until they were shocked to find that Respondents were using the aforesaid format in the same manner as outlined by Appellants to Respondents, without notification by Respondents to Appellants of such use.' This admission is binding upon plaintiffs and we must assume that plaintiffs' offer was rejected by General Mills. This is confirmed by plaintiffs' admission that there was no further negotiation between the parties, and by the eight years' lapse of time between the letter of November 12, 1945 and the appearance of the Betty Crocker Junior Baking Kit. It is elementary that an offer, unless it provides otherwise, must be accepted within a reasonable time. Bogart v. George K. Porter Co., 193 Cal. 197, 223 P. 959, 31 A.L.R. 1045. There is language in the complaint to the effect that the alleged use of plaintiffs' format and idea constituted an acceptance of their offer, but this language is, at best, conclusory, and is refuted both by plaintiffs' own admissions and by the lapse of time between plaintiffs' offer and the appearance of General Mills' own kit. We have therefore concluded that the complaint cannot be sustained on the theory that it states a cause of action for the breach of an express contract.
Plaintiffs' second contention, that the complaint states a cause of action on the theory of an implied-in-fact contract, is likewise without merit. 'An implied contract is one, the existence and terms of which are manifested by conduct.' Civ.Code, § 1621. 'While an express contract is one, the terms of which are stated in words (Treadwell v. Nickel, 194 Cal. 243, 228 P. 25), one party may use the words and the other may accept, either in words or by his actions or conduct. Lane v. Superior Court, 104 Cal.App. 340, 285 P. 860. An implied contract is one that 'is inferred from the conduct, situation, or mutual relation of the parties and enforced by the law on the ground of justice'. Jennings v. Bank of California, 79 Cal. 323, 21 P. 852, 853, 5 L.R.A. 233, 12 Am.St.Rep. 145. 'The making of an agreement may be inferred by proof of conduct as well as by proof of the use of words.' Dunham, Carrigan & Hayden Co. v. Thermoid Rubber Co., 84 Cal.App. 669, 258 P. 663, 664. 'In general an implied contract, in no less degree than an express contract, must be founded upon an ascertained agreement of the parties to perform it, the substantial difference between the two being in the mere mode of proof by which they are to be respectively established. The law will imply that a party did make such a stipulation as under the circumstances disclosed, he ought, upon the principles of honesty, justice, and fairness to have made.' Smith v. Moynihan, 44 Cal. 53, at page 62. Of course, both kinds of contracts must be supported by adequate considerations. § 1605, Civ.Code.' Grant v. Long, 33 Cal.App.2d 725, 736-737, 92 P.2d 940, 947.
In this connection, plaintiffs rely on Weitzenkorn v. Lesser, supra, 40 Cal.2d 778, 256 P.2d 947, and Kurlan v. Columbia Broadcasting System, 40 Cal.2d 799, 256 P.2d 962. In those cases, the Supreme Court reversed judgments based on orders sustaining, without leave to amend, demurrers to counts predicated upon the theory of implied-in-fact contracts. We are of the view that the Kurlan and Weitzenkorn cases are not controlling as to the facts pleaded by plaintiffs herein. The complaint in the instant case, as well as the complaints in Kurlan and Weitzenkorn, contained allegations to the effect that material was submitted at the request of the defendants under an implied agreement that if the material were used by defendants, plaintiffs would be paid the reasonable value thereof. In our case, however, the letter which was incorporated into the complaint contradicts those allegations. It requested an expression of opinion as to whether General Mills was interested in plaintiffs' idea and format and indicated that plaintiffs would prepare and submit a kit and a cookbook to General Mills if plaintiffs received a favorable answer. No favorable answer was received, and the kit and cookbook were never submitted to General Mills for the good reason that General Mills was not interested. The specific facts pleaded control the general allegations as to the existence of an implied-in-fact contract between the parties. Wall v. State of California, 73 Cal.App.2d 838, 842, 167 P.2d 740; Sutton v. Walt Disney Productions, 118 Cal.App.2d 598, 258 P.2d 519. When General Mills declined to consider any business arrangement plaintiffs' proposal became a nullity and the plan could have been submitted far and wide in an effort to interest someone in it. General Mills would have had no right to object if some competitor had contracted for the use of the plan. Under plaintiffs' theory anyone to whom the plan was submitted would be forever barred from putting out a children's baking kit without paying plaintiffs for the privilege. Rights in commonplace ideas may not be appropriated in this manner.
It is unnecessary to discuss the contention raised by General Mills that in any event there is no substantial similarity between the things suggested in plaintiffs' letter and the Betty Crocker Junior Baking Kit.
The judgment is affirmed.
PARKER WOOD and VALLEE, JJ., concur. --------------- * Appeal Dismissed by Stipulation of the Parties Jan. 10, 1957.