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Contracts Keyed to Kuney
Zapatha v. Dairy Mart, Inc.
Citation:
381 Mass. 284, 408 N.E.2d 1370 (1980).Facts
In 1973, Mr. Zapatha signed an application to be considered for a Dairy Mart franchise. At that time, he was presented with a brochure entitled “Here’s a Chance” that made representations about becoming a franchise holder. Mr. Zapatha’s application was approved and he was offered a store in Agawam. On November 8, 1973, a Dairy Mart representative presented Mr. Zapatha with a form franchise agreement. The agreement contained a variety of terms including a termination provision which allowed either party (after twelve months) to terminate the agreement without cause on 90 days written notice. Additionally, in the event Dairy Mart initiated the termination, it agreed to repurchase the saleable inventory at 80% of the retail prices. The representative read the provision to Mr. Zapatha and advised he take the agreement to an attorney, but that the contract was not negotiable. The Zapathas signed the agreement without speaking to an attorney.
In 1974, another store became available in Springfield and the Zapathas elected to surrender the Agawam store and signed an identical agreement for the Springfield store.
In November 1977, Dairy Mart presented a new and more detailed form agreement to the Zapathas for execution. Mr. Zapatha informed the Dairy Mart representatives he was content with the existing contract and would not sign the new agreement. On January 20, 1978, Dairy Mart gave the Zapathas written notice that their contract was being terminated effective in 90 days, but that they remained available to enter into discussions to enter into the new agreement.
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