The opinion
STATE OF MAINE SUPERIOR COURT
ANDROSCOGGIN CIVIL ACTION
D~CJ<ET... NO.: ~V-08-~,li46",
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WILLIAM PABST, JR.,
Plaintiff,
ORDER
v.
RECEIVED & FILED
LEWISTON DAILY SUN,
Defendant
ANDROSCOGGIN
SUPERIOR COURT
Plaintiff William Pabst, Jr., has brought this action against the defendant
Lewiston Daily Sun to recover for an alleged breach of contract.
BACKGROUND
Mr. Pabst was an independent contractor who distributed newspapers for
the Lewiston Daily Sun (the Daily Sun). The parties' relationship was governed
by two contracts, executed on April 29, 2004 and March 1, 2006 respectively. Both
contracts contained language identifying them "as the final, complete and
exclusive statement of the parties' agreement and contract," intended to replace
all prior agreements, which could only be modified by a mutually-signed
writing.
Under the contracts, Mr. Pabst leased a list of the Daily Sun's subscribers
located along a certain distribution route. Each day he would purchase
newspapers wholesale from the Daily Sun, then resell them to the public in the
designated area. While Mr. Pabst could collect payments direct! y, subscribers
often mailed their payments to the Daily Sun. The contracts authorized the Daily
Sun to accept these payments on Mr. Pabst's behalf as his agent. No other
1
mention of compensation appears in either contract. However, the parties in fact
had a well-defined system of accounting between themselves whereby each
week the Daily Sun would give Mr. Pabst a check for the net portion of his
subscribers' payments minus the wholesale cost of the papers. Other debits and
credits were also applied, all of which were reflected in a weekly invoice.
At the time the first contract was signed, the Daily Sun's representative
informed Mr. Pabst that a $60 per-week flat-rate adjustment would be deducted
from his weekly disbursements due to the high-profitability of his routes. This
money would be shared with other distributors serving less profitable routes.
The Daily Sun claims that Mr. Pabst was already familiar with this subsidy
because he had formerly been employed by the company as a motor route
manager. In that position Mr. Pabst had been responsible for analyzing the
profitability of various routes and adjusting the allocation subsidies between
them.
While Mr. Pabst apparently expressed his disagreement with the subsidy
system, he performed under the initial contract from April 29, 2004 to February
28, 2006. Each week Mr. Pabst would receive a check and an invoice from the
Daily Sun reflecting the net of subscriber fees from his routes plus gratuities,
minus the wholesale cost of his newspapers and the $60 per-week redistribution
deduction. Other unspecified debits and credits were applied as well. On March
1, 2006 Mr. Pabst and the Daily Sun executed a second contract that was identical
to the first in all aspects material to this litigation. Mr. Pabst continued to
perform until September 30, 2007. On October 24, 2008, Mr. Pabst filed this
complaint alleging that the Daily Sun's withholding of the subsidies constituted
an intentional breach of the parties' agreement.
2
Mr. Pabst argues that the contracts unambiguously prohibited the flat-rate
adjustment, and that the parol evidence rule operates to bar any extrinsic
evidence to the contrary. He also contends that the trial testimony offered by the
Daily Sun is unreliable, that the doctrine of contra proferentem favors his cause,
and that this case is sufficiently analogous to an unpaid-wages dispute to merit
the application of 26 M.R.S.A. § 626's allowance of attorney's fees. The Daily Sun
contends that the parol evidence rule is not applicable because the written
contracts are ambiguous and/ or partially integrated, and that the extrinsic
evidence shows the weekly deductions to have been part of the whole
agreement. The Daily Sun also argues that the affirmative defenses of accord and
satisfaction, release, or payment bar Mr. Pabst's claim, and that it is not liable for
attorney's fees in any event.
DISCUSSION
This dispute is fundamentally one of contract interpretation. The Daily
Sun argues that the redistribution scheme did not violate the parties' contracts.
Mr. Pabst, the plaintiff, contends that it did, though he has failed to point out
what specific portion of the contract he believes was breached.
When interpreting a written contract, courts seek to "effectuate 'the
parties' intentions as reflected in the written instrument, construed with regard
for the subject matter, motive, and purpose of the agreement, as well as the object
to be accomplished.'" Rogers v. JacksoH, 2002 ME 140, <]I 16, 804 A.2d 379,382-83
(Saufley, c.J., dissenting) (quoting V.I.P., Inc. v. First Tree Dev., LLC, 2001 ME 73,
<]I 3, 770 A.2d 95, 96) (internal quotations omitted). The court may consider
extrinsic evidence only in limited circumstances. Id. <]I 16, 804 A.2d at 383. If the
writing is ambiguous, the court may consider extrinsic evidence "to ascertain the
3
intent of the parties." Id. 9117,804 A.2d at 383. Similarly, "[i]f the parties allege
that the unambiguous written instrument reflects only part of their agreement,"
the court may consider extrinsic evidence to determine "the extent to which the
written document represents an integration of their agreement." Id. 9I 18, 804
A.2d at 383 (citing Handy Bont Serv., Inc. v. Profl Servs., Inc., 1998 ME 134, 9I 11,
711 A.2d 1306, 1309).
Mr. Pabst rests on the contracts and claims they are fully integrated and
unambiguously establish his right to the contested funds. The Daily Sun
contends that the contracts' abbreviated discussion of compensation is facially
ambiguous or demonstrates a lack of integration. Contract language "is
ambiguous if it is reasonably susceptible to more than one interpretation." Id.
9I 17, 804 A.2d at 383 (citing Villas by tlIe Sea Owners Ass'n v. Garrity, 2000 ME 48,
9I 9, 748 A.2d 457, 461). Whether a term is ambiguous is a question of law. Villas
by tlIe Sea Owners Ass'n, 2000 ME 48, 9I 9, 748 A.2d at 461.
Here, the term the Daily Sun complains of is almost certainly not
ambiguous. The contracts state:
[Mr. Pabst] shall be responsible for any money that [Mr.
Pabst] collects in advance from subscribers. [Mr. Pabst] agrees
that the [Daily Sun] may act as [Mr. Pabst's] agent in accepting
advance payments from subscription payments received for
copies that [Mr. Pabst] has delivered.
This language clearly allocates responsibility for the collection of subscribers'
advance payments to Mr. Pabst, and creates an agency relationship between the
Daily Sun and Mr. Pabst with respect to payments sent directly to the company.
The provision's failure to address other payment contingencies does not render it
ambiguous. However, its failure to address essential details of the parties'
financial relationship does show that the contracts were not fully integrated.
4
Whether an agreement is fully integrated or not is a question of law. Gagne
v. Stevens, 1997 ME 88, err 8, 696 A.2d 411,414. "Where the language of the
agreement is unambiguous with respect to the existence and scope of integration,
no extrinsic evidence concerning integration may be presented by the parties or
considered by the court." Handy Boat Serv., Inc., 1998 ME 134, err 11, 711 A.2d 1306,
1309. However, where as here the agreement is facially inadequate to govern
essential aspects of the parties' relationship, the court may take note of extrinsic
evidence. Waxler v. Waxler, 458 A.2d 1219, 1224 (Me. 1983). A clause stating that
the writing is fully integrated is not dispositive in such a case. See Arthur L.
Corbin, 6 Corbin on Contracts § 578, at 119 (interim ed. 2002) (integration clauses
are essentially recitals of fact that may be facially untrue, as evinced by an
incomplete document).
Here, the evidence shows that the parties had arranged a sophisticated
method of accounting between themselves that is not hinted at in their contracts.
The plain contract language allows Mr. Pabst to collect advance payments and
allows the Daily Sun to collect payment for delivered papers on Mr. Pabst's
behalf as his agent. The language does not address what happens if Mr. Pabst
collects payment for delivered papers or if the Daily Sun receives an advance
payment. It also does not indicate that the Daily Sun would give Mr. Pabst a
weekly check, that it would deduct the cost of his wholesale papers from that
check, or that it would include gratuities in the net payment. However, Mr. Pabst
himself describes this system as part of the contract. Under the facts and
circumstances before the court, it appears clear that "the parties contemplated at
least some oral terms. At most, the agreement is partially integrated." Brown Dev.
Corp. v. Hemond, 2008 ME 146, err 17, 956 A.2d 104, 109.
5
Since the written agreements are only partially integrated, the court may
consider extrinsic evidence to determine the full contours of the parties' contract.
Rogers v. Jackso1l, 2002 ME 140, <]I 10, 804 A.2d 379, 381. The existence of additional
terms and conditions consistent with and supplemental to the writing is a
question of fact. [d. <]I<]I 10, 12,804 A.2d 381-82. The subsidy system is not
inconsistent with the written terms of the parties' agreement. The writing allots
responsibility for collection of payments, but does not expressly relieve Mr. Pabst
of any ongoing financial liability to the company. Furthermore, the evidence
shows that the parties understood the $60 per-week charge to be part of their
ini tial contractual agreement.
Mr. Pabst does not deny that he was aware the subsidization system
existed and had in-fact managed that system for the company. The operation of
the system was raised during the parties' initial contract discussions, and for
three and one-half years the parties fully performed as if the charge was part of
the contractual agreement. Mr. Pabst understood that participation in the
subsidy system was part of the agreement from the outset and cannot now seek
to regain the deducted funds.
The entry is:
Judgment is granted for the defendant Lewiston Daily Sun.
DATE:#
6
WILLIAM PABST JR - PLAINTIFF DISTRICT COURT
13 ANDROSCOGGIN AVE LEWISTON
LEWISTON ME 04240 Docket No LEWDC-CV-2008-01146
Attorney for: WILLIAM PABST JR
DONALD T MASSEY - RETAINED 10/24/2008
RANGER COPELAND WHITTEMORE & MASSEY PA DOCKET RECORD
20 FEDERAL STREET
PO BOX 694
BRUNSWICK ME 04011
vs
LEWISTON DAILY SUN - DEFENDANT
C/O BRYAN DENCH ESQ, PO BOX 3200
AUBURN ME 04210
Attorney for: LEWISTON DAILY SUN
BRYAN DENCH - RETAINED
SKELTON TAINTOR & ABBOTT
95 MAIN STREET
PO BOX 3200
AUBURN ME 04212-3200
Filing Document: COMPLAINT Minor Case Type: CONTRACT
Filing Date: 10/24/2008
Docket Events:
11/04/2008 FILING DOCUMENT - COMPLAINT FILED ON 10/24/2008
11/04/2008 Party(s): WILLIAM PABST JR
ATTORNEY - RETAINED ENTERED ON 10/24/2008
Plaintiff's Attorney: DONALD T MASSEY
11/04/2008 Party(s): LEWISTON DAILY SUN
ATTORNEY - RETAINED ENTERED ON 10/24/2008
Defendant's Attorney: BRYAN DENCH
11/04/2008 CERTIFY/NOTIFICATION - CASE FILE NOTICE SENT ON 11/04/2008
11/14/2008 Party(s): LEWISTON DAILY SUN
OTHER FILING - ENTRY OF APPEARANCE FILED ON 10/15/2008
11/14/2008 Party(s): LEWISTON DAILY SUN
RESPONSIVE PLEADING - ANSWER FILED ON 10/15/2008
11/14/2008 party(s): WILLIAM PABST JR
MOTION - MOTION TO AMEND PLEADING FILED ON 10/22/2008
MOTION FOR PERMISSION TO AMEND COMPLAINT - WITH CONSENT OF DEFENDANT
11/18/2008 Party(s): WILLIAM PABST JR
MOTION - MOTION TO AMEND PLEADING GRANTED ON 11/17/2008
RICK E LAWRENCE , JUDGE
COPIES TO PARTIES/COUNSEL
12/04/2008 Party(s): LEWISTON DAILY SUN
RESPONSIVE PLEADING - ANSWER FILED ON 11/21/2008
Page 1 of 3 printed on: 05/14/2010
LEWDC-CV-2008-01146
DOCKET RECORD
01/20/2009 Party(s): WILLIAM PABST JR
LETTER - FROM PARTY FILED ON 01/02/2009
Plaintiff's Attorney: DONALD T MASSEY
REQUEST FOR HEARING
01/28/2009 ORDER - SCHEDULING ORDER ENTERED ON 01/23/2009
VALERIE STANFILL, JUDGE
ORDERED INCORPORATED BY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO
PARTIES/COUNSEL
01/28/2009 DISCOVERY FILING - DISCOVERY DEADLINE ENTERED ON 03/06/2009
03/31/2009 Party(s): LEWISTON DAILY SUN
OTHER FILING - WITNESS & EXHIBIT LIST FILED ON 03/25/2009
Defendant's Attorney: BRYAN DENCH
04/13/2009 Party(s): WILLIAM PABST JR
OTHER FILING - WITNESS & EXHIBIT LIST FILED ON 03/27/2009
10/01/2009 HEARING - TRIAL MANAGEMENT CONFERENCE SCHEDULED FOR 11/16/2009 @ 8:30
NOTICE TO PARTIES/COUNSEL
10/01/2009 HEARING - TRIAL MANAGEMENT CONFERENCE NOTICE SENT ON 10/01/2009
10/08/2009 Party(s): WILLIAM PABST JR
MOTION - MOTION TO CONTINUE FILED WITH AFFIDAVIT ON 10/08/2009
10/09/2009 Party(s): WILLIAM PABST JR
MOTION - MOTION TO CONTINUE GRANTED ON 10/08/2009
PAUL A COTE JR, JUDGE
COPIES TO PARTIES/COUNSEL
10/09/2009 HEARING - TRIAL MANAGEMENT CONFERENCE CONTINUED ON 10/08/2009
PAUL A COTE JR, JUDGE
11/13/2009 HEARING - TRIAL MANAGEMENT CONFERENCE SCHEDULED FOR 12/07/2009 @ 8:30
NOTICE TO PARTIES/COUNSEL
11/13/2009 HEARING - TRIAL MANAGEMENT CONFERENCE NOTICE SENT ON 11/13/2009
12/07/2009 HEARING - TRIAL MANAGEMENT CONFERENCE HELD ON 12/07/2009
JOHN B BELIVEAU , JUDGE
12/07/2009 TRANSFER - TEMPORARY TRANSFER GRANTED ON 12/07/2009
JOHN B BELIVEAU , JUDGE
AUBSC
12/29/2009 TRIAL - BENCH SCHEDULED FOR 03/11/2010 @ 9:30
02/11/2010 Party(s): LEWISTON DAILY SUN
OTHER FILING - WITNESS & EXHIBIT LIST FILED ON 02/09/2010
AMENDED REC'D 2-16-10: OBJECTION TO THE FILING OF DEFENDANT'S AMENDED WITNESS AND
Page 2 of 3 Printed on: 05/14/2010
LEWDC-CV-200S-01146
DOCKET RECORD
EXHIBIT LIST REC'D ON 2/17/10 PLT'S
OBJECTION
02/1S/2010 TRIAL - BENCH NOTICE SENT ON 02/1S/2010
02/1S/2010 TRIAL - BENCH SCHEDULE OTHER COURT ON 03/11/2010
AUBSC
03/11/2010 TRIAL - BENCH HELD ON 03/11/2010
CARL 0 BRADFORD , JUSTICE
Defendant's Attorney: ADAM R LEE
Plaintiff's Attorney: DONALD T MASSEY Reporter: PENNY PHILBRICK-CARVER
TESTIMONY HEARD & EXHIBITS ADMITTED. PLT & DEF REST. DEFENDANT MOVES FOR A JUDGMENT AS A
MATTER OF LAW. COUNSEL TO SUBMIT PROPOSED FINDINGS OF FACT (NO REPLY NEEDED) AND WRITTEN
ARGUMENTS AS WELL AS POST-TRIAL BRIEFS WITHIN 14 DAYS.
03/24/2010 Party(s): WILLIAM PABST JR
OTHER FILING - OTHER DOCUMENT FILED ON 03/24/2010
PLAINTIFF'S POST-TRIAL MEMORANDUM ORIGINALS SENT TO JUSTICE BRADFORD
03/25/2010 party(s): LEWISTON DAILY SUN
OTHER FILING - OTHER DOCUMENT FILED ON 03/25/2010
DEF'S POST TRIAL BRIEF AND PROPOSED FINDINGS OF FACT AND CONCLUSION OF LAW ORIGINALS SENT
TO JUSTICE BRADFORD
04/14/2010 FINDING - JUDGMENT DETERMINATION ENTERED ON 04/14/2010
CARL 0 BRADFORD , JUSTICE
JUDGMENT INCROPORATEDBY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO
PARTIES/COUNSEL
ORDER - COURT JUDGMENT ENTERED ON 04/14/2010
CARL 0 BRADFORD , JUSTICE
JUDGMENT INCROPORATEDBY REFERENCE AT THE SPECIFIC DIRECTION OF THE COURT. COPIES TO
PARTIES/COUNSEL
Judgment entered for LEWISTON DAILY SUN and against WILLIAM PABST JR.
04/14/2010 FINDING - FINAL JUDGMENT CASE CLOSED ON 04/14/2010
A TRUE COPY
ATTEST:
Clerk
Page 3 of 3 Printed on: 05/14/2010