LAY, Circuit Judge.
Clausen & Sons brings a suit in two counts against Theo. Hamm Brewing Co. Count I relates to a treble damage action based upon the Sherman Act §§ 1 and 2 (15 U.S.C. §§ 1 and 2) and the Clayton Act, §§ 2 and 3 (15 U.S.C. §§ 13 and 14). Count II, with which we are concerned here, relates to an alleged breach of contract. Hamm sought a summary judgment dismissal of both counts under Fed.R.Civ.P. 56. The trial court overruled defendant's motion as to the antitrust claim but sustained its motion as to Count II. The court certified under Fed.R.Civ.P. 54(b) that there was no just reason for delay of the entry of dismissal on Count II and plaintiff appealed.
We reverse and remand to the district court with directions to reinstate Count II.
Plaintiff alleges that it had been a wholesale distributor of defendant's products since 1911. Clausen states that in 1950 an oral contract was made with Hamm to become an exclusive Hamm's beer distributor for an area defined as Southern Minneapolis and contiguous suburbs. In reliance upon said contract Clausen alleges (1) they discontinued all competitors' products; (2) purchased and maintained inventories, sales, advertising, warehouse space, personnel and facilities as a Hamm's exclusive distributor; (3) that Clausen was to remain the exclusive distributor as long as Clausen performed its undertaking. It is alleged that in April 1963 Hamm terminated its oral agreement.
The trial court sustained Hamm's motion for summary judgment on the ground that the contract pleaded was terminable at will since on its face there existed a "lack of mutuality of obligation."
We need not repeat in detail our concern of summary dismissal under Rule 56. If there exists the slightest doubt as to a factual dispute or "genuine issue of fact," summary judgment should be denied. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Williams v. Chick, 373 F.2d 330 (8 Cir. 1967); Larsen v. General Motors Corp., 391 F.2d 495, 8 Cir., March 11, 1968.
Hamm does not dispute this rule but nevertheless urges that under the pleadings and Minnesota law there exists no doubt that it is entitled to a summary judgment. We disagree.
"Mutuality of obligation" is only a semantical exercise surrounding the real determinant of a contract, namely, consideration. The Minnesota Supreme Court has acknowledged this:
See also Reichert v. Pure Oil Co., 164 Minn. 252, 204 N.W. 882, 884 (1925), discussing mutuality of obligation (consideration) as opposed to mutuality of remedy (a prerequisite for specific performance).
Summary dismissal, in view of the allegations of the complaint, in our
But Hamm argues under the facts pleaded that consideration is totally lacking and cannot possibly be proved under the facts alleged. Analysis disputes this.
First, Minnesota has long recognized the principle that consideration may be a detriment incurred, and that it is not required that consideration pass from the promisee to the promisor to be valid. Ellingson v. State Bank of Hoffman, 182 Minn. 510, 234 N.W. 867, 868 (1931); Home Supply Co. v. Ostrom, 164 Minn. 99, 204 N.W. 647 (1925); West v. Kidd, 184 Minn. 494, 239 N.W. 157, 158 (1931); Estrada v. Hanson, 215 Minn. 353, 10 N.W.2d 223 (1943). The court in Home Supply Co. v. Ostrom, supra, 204 N.W. at 647, stated:
Thus, Clausen's theory that it was obligated to invest substantially in Hamm's advertising, products, sales personnel, buildings, etc. was not considered by the lower court in his opinion. Reliance upon Victor Talking Machine Co. v. Lucker, 128 Minn. 171, 150 N.W. 790 (1915); Hoover v. Perkins Windmill & Axe Co., 41 Minn. 143, 42 N.W. 866 (1889); and especially E. I. DuPont deNemours & Co. v. Claiborne-Reno Co., 64 F.2d 224, 89 A.L.R. 238 (8 Cir. 1933) is of little help. In those cases, the consideration by detrimental reliance was either not alleged or not proved.
Secondly, it may be that the trial court upon proof will find sufficient evidence to justify contractual liability by way of promissory estoppel. See Albachten v. Bradley, 212 Minn. 359, 3 N.W.2d 783 (1942); Northern Drug Co. v. Abbett, 205 Minn. 65, 284 N.W. 881, 882, 121 A.L.R. 1349 (1939). Under this theory liability may ensue even if the detriment incurred by one party is not bargained for, if it can be shown that the promisor should reasonably have expected its promise to induce another's detrimental action.
Because of the indefiniteness of the duration of Clausen's alleged obligations,
Thus we feel that under Minnesota law where an exclusive franchise dealer under an implied contract, terminable on notice, has at the instance of a manufacturer or supplier invested his resources and credit in establishment of a costly distribution facility for the supplier's product, and the supplier thereafter unreasonably terminates the contract and dealership without giving the dealer an opportunity to recoup his investment, a claim may be stated. See also 6 Corbin on Contracts, § 1266 l. c. 57-59; Gellhorn, Limitations on Contract Termination Rights — Franchise Cancellations, 57 Duke L.J. 465 (1967). Hamm in effect argues that even if the court can find consideration, plaintiff cannot prove any causal damages. But this is not our concern now. The fact that a plaintiff may have assumed an almost insurmountable burden to prove his alleged claim is a problem often faced by many pleaders. Yet the law must recognize the right to try.
Reversed and remanded with directions to reinstate Count II for a plenary trial.