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SCHLIEP v. DEMARAS

March 16, 1976

Patricia SCHLIEP, Plaintiff,
v.
Victor DeMARAS et al., Defendants



The opinion of the court was delivered by: SIRICA

 SIRICA, District Judge.

 The defendants in this case have moved for summary judgment; the plaintiff opposes.

 This is an action by Patricia Schliep for actual damages which the defendants allegedly caused her deceased husband August Schliep and for punitive damages. The case was originally brought by her husband, but he died unexpectedly about five months afterward. The defendants, Messrs. Jaskiewicz, DeMaras, MacKenzie, Lourie, and Haberkorn, are members of a group that allegedly breached a contract with Schliep and/or defrauded him.

 The plaintiff alleges basically the following:

 In May of 1970, Jaskiewicz, on behalf of at least part of the group, telephoned Schliep and asked him to contact John Akers, the owner of Akers Motor Lines, and to personally initiate negotiations with Akers for the sale of the corporation to the group. Jaskiewicz promised that if Schliep would do so, and if the group should buy the corporation, Schliep would be made president of Akers Motor Lines. Schliep accepted and shortly thereafter met with Akers on behalf of the group. Some two years later, however, when the group finally acquired Akers Motor Lines, the group made defendant Lourie president of the line and not Schliep.

 The plaintiff claims that on these facts she is entitled to a judgment based on breach of contract or fraud or both.

 As to the contract claim, the defendants DeMaras, MacKenzie, Haberkorn, and Lourie have moved for summary judgment on four separate grounds:

 (1) Jaskiewicz did not promise Schliep the presidency of Akers Motor Lines if Schliep would initiate negotiations with Akers, and the plaintiff cannot prove to the contrary by competent evidence;

 (2) assuming that Jaskiewicz did make such a promise Schliep was acting as a broker without a license, and therefore was not entitled to compensation;

 (3) assuming that Jaskiewicz did make such a promise, there was an implied or constructive condition in the agreement that the defendants would be liable only if Schliep was a "procuring cause" of the sale of Akers Motor Lines to the group, and it is clear that he was not;

 (4) assuming that Jaskiewicz did make such a promise, the plaintiff will be unable to show by competent evidence at trial that these defendants are bound by the promise.

 As to the fraud claim, these defendants have moved for summary judgment on the grounds that the plaintiff cannot prove that Jaskiewicz made the promise or that they would be bound by it if he did.

 The defendant Jaskiewicz has also moved for summary judgment. With regard to the contract claim, he has argued that he never made the promise in question to Schliep, that Schliep was acting as a broker without a license, and that Schliep was not a "procuring cause" of the sale.* With regard to the fraud claim, he has argued that the plaintiff cannot prove that he made the promise to Schliep.

 I. The Standard for Determining the Propriety of Granting a Summary Judgment

 
"The record must show the movant's right to it "with such clarity as to leave no room for controversy," and must demonstrate that his opponent "would not be entitled to ...

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