McArtor v. MOBIL OIL CORPORATION

324 N.W.2d 399 (1982) 212 Neb. 592

James McARTOR, Appellant,
v.
MOBIL OIL CORPORATION, a New York corporation, Appellee.

No. 44416.

Supreme Court of Nebraska.

September 24, 1982.

Gregory A. Pivovar, Ralston, for appellant.

Timothy J. Pugh and J. Scott Paul of Boland, Mullin & Walsh, Omaha, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, WHITE, HASTINGS, and CAPORALE, JJ.

CAPORALE, Justice.

Plaintiff-appellant, James McArtor, appeals from the order of the trial court which sustained defendant's demurrer, dismissed plaintiff's petition, and overruled plaintiff's motion for new trial. We affirm.

Plaintiff's petition alleged that the defendant-appellee, Mobil Oil Corporation, breached its lease and retail dealer contract entered into by and between plaintiff and defendant on or about January 21, 1975, without "good cause," thus contravening public policy. Plaintiff argues that the adoption of the Nebraska Franchise Practices Act, Neb.Rev.Stat. §§ 87-401 et seq. (Reissue 1981), which became effective on July 22, 1978, evidences the prior existence of a public policy allowing franchises to be terminated only upon the existence of "good cause."

We recently had occasion to consider this very argument and rejected it. In McDonald's Corp. v. Markim, Inc., 209 Neb. 49, 306 N.W.2d 158 (1981), we held that prior to the enactment of the Nebraska Franchise Practices Act (which excludes agreements for the sale, distribution, or marketing of petroleum products), the law of Nebraska generally was that any person might do or refuse to do business with whomsoever he desired. Although Chief Justice Krivosha and Judges Brodkey and White dissented in McDonald's, they did not quarrel with its rationale relative to the policy prior to the Franchise Practices Act but, rather, disagreed with the interpretation of a particular clause in the contracts in question. See, also, Barish v. Chrysler Corporation, 141 Neb. 157, 3 N.W.2d 91 (1942).

The trial court was correct in sustaining defendant's demurrer and in dismissing plaintiff's petition, and properly denied the plaintiff a new trial.

AFFIRMED.

CLINTON, J., participating on briefs.