than a fixed per capita sum for each person in attendance. The amendment also provided, in keeping with McKinney's request, that plaintiff would, at its expense, make substantial improvements in the confession facilities at defendant's ballpark. As consideration therefore and to guarantee a long term relationship between the parties, as well as to aid plaintiff in amortizing and justifying its anticipated expenditures, the expiration date of PX 1 was extended from December 31, 1950, for an additional five years to the end of 1955 and thereafter for one additional year for each $5,000 expended by plaintiff in the rehabilitation program. Jacobs also agreed to treat defendant on a most favored nation basis whereby plaintiff would pay for concession rights at the most favorable prevailing rate for any comparable situation. That agreement was also communicated to Johnson in later years and the rate was adjusted from time to time since McKinney's term of office. Although plaintiff contends that McKinney's authority was such that it was unnecessary to present either the written contract or its terms to defendant's Board of Directors, McKinney did so and it was approved at Board meeting on December 4, 1946. That approval is reflected in the meeting's minutes which were admitted at trial as plaintiff's Exhibit 4 (hereinafter referred to as PX 4).
Following the execution and approval of PX 2, plaintiff renovated the then existing concession facilities at Forbes Field and also installed extensive new facilities during the first half of 1947. Although it was originally anticipated that plaintiff's expenditures would amount to approximately $60,000, costs were necessarily higher than anticipated and plaintiff spent approximately $193,000 for architectural and construction services.
Although defendant denies knowledge of PX 2 prior to 1951 or 1952 and asserts that the parties entered into a year to year agreement in 1953, its conduct since October 9, 1946, has been consistent with its recognition of the existence of a long-term contract. During August, 1948, James A. Herron (hereinafter referred to as Herron), who has been one of defendant's officers since 1946, referred to and asserted the terms of PX 2 in correspondence directed to plaintiff. Those letters were admitted at the trial of this action as plaintiff's Exhibits 10 and 11 (hereinafter referred to as PX 10 and PX 11). Furthermore, defendant's copy of PX 1 bears a handwritten notation which reflects the fact that the parties entered into a new agreement which extended the term of the contract and changed the payment provisions effective with the 1947 season. At least part of the notation is in Herron's handwriting. The notation must have been made between 1946 and 1950 because Herron referred to the office of Roy Hamey, who was general manager from 1946 until December, 1950. In October, 1953, nearly three years after PX 1 would have expired had it not been extended by PX 2, Herron, as defendant's treasurer acknowledged in writing the continued existence of plaintiff's rights under the terms of PX 1. That writing was admitted at trial as plaintiff's Exhibit 13 (hereinafter referred to as PX 13). In 1957, defendant again recognized its long term agreement when it borrowed from plaintiff the sum of $200,000 as an advance against concession income for the future years 1958, 1959, 1960 and 1961. That recognition is reflected in the letter of September 26, 1957, which was admitted at the trial of this action as plaintiff's Exhibit 12 (hereinafter referred to as PX 12). Johnson acknowledged the long term agreement as late as October 16, 1963, when he asked Jacobs to make whatever adjustment he, Jacobs, might feel warranted for the years 1963, 64, 65 and 66. A copy of Johnson's letter was admitted at the trial as defendant's Exhibit F (hereinafter referred to as DX F).
In January, 1953, Johnson and defendant's counsel, Robert L. Kirkpatrick, who is also Johnson's law partner, met in Buffalo, New York with Jacobs and Sportservice's counsel, Benjamin J. Reisman, to seek renegotiation of PX 2. Neither Reisman nor Kirkpatrick was called upon to testify concerning the results of that lengthy meeting. The record indicates that Reisman was too ill to attend the trial; Kirkpatrick's absence was unexplained. At the meeting, a discussion was had concerning the possibility of replacing PX 2 with a new five-year agreement, but no agreement was finalized at that meeting. Although further discussions were held and proposed drafts were exchanged during the next ten years, the parties never reached agreement concerning the removal of the equipment installed by plaintiff or, alternatively, plaintiff's right to compensation for that equipment should the proposed five-year contract not be renewed at the end of its term. Johnson was assured, however, that defendant would continue to receive the most favored nation treatment which had been promised and given to McKinney when PX 2 was negotiated. In keeping with that assurance, the percentage of concession revenue which defendant was to receive was increased commencing with the 1953 baseball season. That same percentage figure was also inserted in the drafts of the proposed new agreement.
During the course of the lengthy negotiations for a proposed new contract and thereafter for a modification to be effective when the Pirates moved to a new stadium, plaintiff assumed and asserted the validity of PX 2. Defendant did not contradict that position and never asserted until the time of trial the existence of a year to year agreement. On November 28, 1969, defendant advised plaintiff by letter that their contract would be terminated effective December, 1969. Thereafter, the contract was terminated and defendant contracted with another concessionaire. This action for damages and injunctive relief followed and a trial limited to the two issues hereafter stated was held. Those issues are now before the Court for resolution.
© 1992-2004 VersusLaw Inc.