remedy. See, Rusiski v. Pribonic, 326 Pa. Super. 545, 474 A.2d 624 (1984). Linnet v. Hitchcock, supra, 324 Pa. Super. at 211, 471 A.2d at 540. However the alleged contract is labeled, it was necessary to instruct the jury as to the essential elements of a franchise agreement and the requirement of specificity in a contract because Popeyes contended that it would not have entered into any agreement relating to the extension of additional franchise rights unless it had reached an agreement with PFF on these issues. PFF itself concedes that "a contract to execute a later contract must contemplate the specific terms of the later agreement." PFF's Brief at 55. Furthermore, it defies logic that Popeyes would enter into an agreement to execute a later contract whose terms were vague and indefinite when the effect of entering into that agreement would be the same as if it had actually entered into a formal Option Agreement with PFF.
Finally, there is ample evidence in the record that supports Popeyes' contention that these were essential elements of the agreement, and there was no meeting of the minds on these issues. For example, PFF asserts that the parties had agreed upon a specified territory citing Maxwell's letter of March 24, 1983, which stated that the territory would be "the eastern portion of territory formally [sic] held by Mr. Kenneth Wall plus an extension of the southern boundary of that territory to Chestnut Street." Yet, Terrel Rhoton's letter to Maxwell states that Maxwell's $5000.00 deposit represents a "good faith deposit and will secure a yet to be determined five (5) store area in Philadelphia, Pennsylvania." This hardly indicates that the parties had come to a meeting of the minds on a specific territory.
Similarly, PFF's contentions that the opening schedule need not be established with specificity but that a reasonable time should be implied because of the absence of any indication to the contrary conflicts with the requirement in the formal Option Agreements used by Popeyes that "time is of the essence."
Since there was substantial evidence that Popeyes and PFF had not agreed upon the boundaries of the franchise territory or the schedule on which the franchises were to be opened, it was necessary for the jury to determine whether a full meeting of the minds had been reached on any alleged agreement relating to the grant of franchise rights.
The second and primary instruction to which PFF takes exception required the jury to determine whether the alleged contract was a conditional one, that is, whether Popeyes required PFF to submit satisfactory financial statements and prove its ability to operate Popeyes franchises in a capable manner.
Contrary to PFF's assertion that the specification of these two factors as possible conditions was "tantamount to a finding by the Court as a matter of law as to the existence of conditions and as to the identity of those conditions", the challenged instruction merely asked the jury to determine if the contract was a conditional one. See, PFF's Brief at 59. It then identified what those conditions would be based on the evidence introduced at trial.
The letter dated April 1, 1983, from Terrel Rhoton of Popeyes to Maxwell expressly conditioned the grant of the five additional franchises on the production of satisfactory financial statements. In addition, William A. Copeland of Popeyes testified that Popeyes also conditioned the grant of franchise rights on Maxwell's ability to operate the stores satisfactorily. See, Testimony of Copeland, May 7 Tr. at 11. This evidence shows that the conditions imposed by Popeyes applied to the grant of any franchise rights to PFF, regardless of whether that grant is characterized as a franchise option agreement, or a contract to enter into a franchise option agreement.
Accordingly, PFF's contrived argument that this court's failure to distinguish between the two contracts was prejudicial because the jury should have been asked to decide if these were conditions of both contracts or only of the first or second contracts must be rejected.
PFF also challenges the courts instruction on consideration. The jury was told that if PFF "could have refused to enter into a formal option agreement and obtain a full refund of the $5000.00 deposit, then you must find the plaintiff did not give anything of value and must find in favor of the defendants on the contract claim". May 9 Tr. at 142. PFF now asserts that the instruction was incorrect because the consideration it tendered was a promise to enter into a Popeyes Option Agreement, and not the $5000.00 deposit.
It was not error to instruct the jury to consider whether the $5000.00 paid by Maxwell to Popeyes was the consideration for the alleged contract because this was the theory on which Popeyes prosecuted the lawsuit.
It was not until the filing of this motion for a new trial that PFF asserted that the consideration was merely a promise to enter into a Popeyes Option Agreement. Accordingly, PFF's contention must be rejected.
THE INTENTIONAL INTERFERENCE WITH CONTRACTUAL RELATIONS CLAIM
PFF also objects to the instructions regarding its claim of intentional interference with contractual relations. Specifically, PFF contends that the court erred by instructing the jury that it must find "that Marriott's purpose was to injure or harm the plaintiff" in order to find against Marriott on the interference with the prospective contractual relations claim.
Not only is PFF barred from raising this objection to the instruction because it failed to raise the issue at trial, but the instruction is in accord with applicable Pennsylvania law. In Glenn v. Point Park College, 441 Pa. 474, 477, 272 A.2d 895, 899 (1971), the Supreme Court of Pennsylvania held that the tort of interference with prospective contractual relations requires a showing that the defendant acted as he had "for the purpose of causing harm to the plaintiff." The instruction was therefore correct.
THE ACCORD AND SATISFACTION CLAIM
PFF does not challenge the legal sufficiency of the instruction and special interrogatory on accord and satisfaction. Rather, PFF's principal contention is that the court failed to instruct the jury that if Popeyes had an already existing obligation to return the $5000.00 deposit, then it could not have been the consideration for an accord and satisfaction.
As the jury never reached the issue of accord and satisfaction, PFF's objection is irrelevant. Nevertheless, even if the instructions were pertinent, there was no error because PFF misconstrues the law in its assertion that the refund of the deposit was an already existing obligation and, therefore, could not be consideration for an accord and satisfaction. When there is a genuine dispute between the parties, and one side cashes a check tendered to end a dispute, an accord and satisfaction is reached. Goodway Marketing, Inc. v. Faulkner Advertising Assoc., Inc., 545 F. Supp. 263 (E.D. Pa. 1982); Law v. Mackie, 373 Pa. 212, 95 A.2d 656 (1953); Charles X. Miller, Inc. v. Oak Builders, Inc., 306 So. 2d 449, 451 (La. App. 1975). A dispute as to the terms of a contract or the meaning of those terms may provide the proper basis for an accord and satisfaction. Hayden v. Coddington, 169 Pa. Super. 174, 82 A.2d 285 (1951). Finally, payments which are admittedly due, such as partial payments by debtors, do not serve as consideration for an accord and satisfaction. Sternbergh v. Fehling, 396 Pa. 280, 152 A.2d 473 (1959); Charles X. Miller, Inc. v. Oak Builders, Inc., supra, 306 So. 2d at 451.
The refund to Maxwell was not an already existing obligation in the sense that it was admittedly due. Indeed, it could only be considered an existing obligation in the sense that Popeyes was freely entitled to refund Maxwell's $5000.00 at any time prior to entry into a formal contract, and for any reason.
Accordingly, there was no error in this instruction.
PFF also challenges the courts instruction on estoppel, complaining that the court did not specify that the estoppel defense was applicable only to the non-antitrust claims, but that the language of the instruction made it applicable to all of its causes of action against Marriott.
PFF takes this instruction out of context. The estoppel instruction was delivered after the instructions on interference with contractual relations claim and long after the instructions on the antitrust claims. As such, the instruction was sufficiently divorced from the antitrust instructions so as to avoid confusing the jury.
Moreover, not only did the jury not reach the issue of estoppel, but it also did not have the opportunity to apply the estoppel instruction to any of the antitrust issues because of its finding that PFF had failed to prove either a conspiracy or a relevant market. Without proof of a conspiracy and a relevant market, PFF could not establish a violation of Sections 1 or 2 of the Sherman Act.
Finally, the estoppel claim was premised on the finding of a contract. Because the jury found that there was no contract, the estoppel instruction was irrelevant.
PFF raises a host of other objections, primarily relating to the instructions on damages, the use of depositions in cross examination and the submission of the special interrogatories to the jury. These objections are completely devoid of any merit and do not warrant any further discussion.
Accordingly, the plaintiffs' motion for a judgment notwithstanding the verdict or in the alternative for a new trial will be denied.
AND NOW, this 13th day of MARCH, 1986, upon consideration of the plaintiffs' motion for a judgment notwithstanding the verdict and, in the alternative, for a new trial, the memoranda submitted by the parties, and for the reasons stated in the accompanying memorandum, it is
that the plaintiffs' motion is DENIED.