Full opinion text
MEMORANDUM MORTON, District Judge. After jury trial and verdict in favor of the corporate plaintiff, Cecil Corley Motor Company, Inc., but not for the individual plaintiff, Cecil Corley, Jr., this civil private antitrust, breach of contract and Dealers Day In Court action is now before the Court on General Motors’ motion for judgment notwithstanding the verdict under Fed.Rules Civ.Proc. 50(b), or a new trial, Fed.Rules Civ. Proc. 59. The Court has carefully re-examined the evidence in light of the briefs, and by a direct review of the transcript of the trial, to test the reservations with which the Court, after denying General Motors’ motions for a mistrial, and, for a directed verdict under Rule 50(a), Fed.Rules Civ.Proc., submitted the issues to a jury under Rule 50(b), Fed. Rules Civ.Proc. Further examination of the record has confirmed the view of the Court that the evidence on the issues of liability and damages is wholly insufficient, or at least so insubstantial and lacking in probative value that there is no evidence whatsoever from which the jury might rationally have concluded that defendant General Motors had violated the federal statutes in question or breached its contract with plaintiff or otherwise injured the business of plaintiff; that General Motors’ motion for a directed verdict in its favor should be, and is, hereby ordered with the alternative provision that in the event such order should be vacated or reversed on appeal, the order for a new trial of the issues, unless also vacated or reversed on appeal, shall remain in effect. (See Rule 50(b) and (c) Fed.Rules Civ.Proe.). The Court is fully mindful that the test for the propriety of judgment notwithstanding the verdict is precisely the same as that which governs a motion for directed verdict “since the motion for judgment notwithstanding the verdict merely renews an earlier motion for a directed verdict,” Minton v. Southern Railway Co., 368 F.2d 719, 720 (6th Cir. 1966). The test is whether in this case, considering the evidence in its most favorable light for plaintiff and giving to plaintiff’s evidence all the fair value to which it is reasonably entitled and indulging every reasonable inference favorable to plaintiff, there is evidence of sufficient substantiality and probative value from which the jury might rationally find a verdict in favor of plaintiff. Moore’s Federal Practice § 50.07, pp. 2356-2357; Wright & Miller Practice & Procedure* § 2524; Massey v. F. H. McGraw & Co., 233 F.2d 905 (6th Cir. 1956). The verdict of a jury should not be lightly set aside, nor should a new trial be lightly granted—certainly not for the mere reason that the Court may disagree with the verdict. However, in this case the Court is convinced that this verdict for the plaintiff, if allowed to stand, would be a legally unjustified windfall to the plaintiff and a miscarriage of justice. Plaintiff cannot go to the jury on the basis of speculation, surmise or conjecture. Dayton Veneer & Lumber Mills v. Cincinnati, N.O. & T.P. Ry. Co., 132 F.2d 222, 223 (6th Cir. 1942); Wolfe v. National Lead Company, 225 F.2d 427, 433-434 (9th Cir. 1955). It also must be remembered that forced or violent inferences may not be drawn and that an inference is a permissible deduction only when it may be reached by logic or reason. An inference results from and depends upon the process of reasoning and it cannot be invoked on the basis of speculation and conjecture. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 284-290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968) ; Galloway v. United States, 319 U.S. 372, 395, 63 S.Ct. 1077, 87 L.Ed. 1458 (1943); Daily Press, Inc. v. United Press International, 412 F.2d 126, 133 (6th Cir. 1969), cert. denied, 396 U.S. 990, 90 S.Ct. 480, 24 L.Ed.2d 453 (1969) . In fairness to the jury, the Court notes that the length of the trial, the numerous exhibits, the technical, complicated subjects, and various specious considerations contributed to a jury verdict which is legally impermissible. However, the law is designed so that in such circumstances the Court must measure up to its responsibility and act in accordance with its considered evaluation of the record. THE PARTIES From 1957 to January 19, 1966, Cecil Corley, Jr. operated an automobile dealership in Gallatin, Tennessee (about 30 miles from Nashville) as a sole proprietorship, under franchise agreements issued separately from time to time by Oldsmobile, Pontiac and GMC Truck divisions of General Motors Corporation, and by American Motors Corporation. On January 19, 1966, Cecil Corley, Jr., caused the business to be incorporated as Cecil Corley Motor Company, Inc., and this corporation continued to operate as an American Motors dealer until sometime in 1967, when it voluntarily terminated its contract with American Motors Corporation, and as an Oldsmobile, Pontiac and GMC Truck dealer of General Motors until April 1, 1970, when it again voluntarily terminated its contracts with General Motors, sold its assets, and went out of the automobile business. Cecil Corley, Jr. had discussed incorporation with General Motors in 1965, requesting that the existing Franchise Agreements be terminated and that new Agreements be executed with the proposed corporation.. Pontiac Motor Division of General Motors would not agree to the granting of an Agreement to the proposed corporation unless Cecil Corley, Jr. executed a general release in Pontiac’s favor. Before trial, Cecil Corley, Jr., having admitted to executing a general release (except for antitrust claims) in favor of Pontiac Motor Division as consideration for the granting of an Agreement to the plaintiff corporation, this Court granted General Motors’ motion for partial summary judgment with respect to any breach of contract claims asserted by the individual plaintiff, Cecil Corley, Jr. From 1948 until October 1968, defendant, Paul Porter, was a partner with his father, B. A. Porter, in a Pontiac dealership known as Broadway Motor Company in Hartsville, Tennessee, some 16 miles northeast of Gallatin and 45 miles northeast of Nashville. (B. A. Porter had obtained his first Agreement with Pontiac at Hartsville in 1935.) In October 1968, Broadway Motor Company terminated its Dealer Selling Agreement with Pontiac Motor Division and moved to Lebanon, Tennessee. A new entity, Porter-Pontiac, Inc. obtained Pontiac and GMC Truck Franchise Agreements for Lebanon in October 1968. Defendant Pontiac Motor Division is an automobile manufacturer engaged in the manufacture and sale of Pontiac automobiles and other products in interstate commerce throughout the United States, including the Middle District of Tennessee. The Court notes that the only defendants in this litigation were Pontiac Motor Division and Paul Porter. Plaintiff corporation expressly disclaimed that any acts of Porter-Pontiac, Inc. had caused it injury or that any conspiracy had existed between Porter-Pontiac, Inc. and Pontiac Motor Division. Further, the evidence was unequivocal that plaintiff corporation neither sought nor claimed damages for any acts of either Oldsmobile or GMC Truck Division of General Motors. The evidence was also undisputed that some six months after plaintiff corporation commenced the instant litigation, it executed a full and complete release of any and all claims in favor of Oldsmobile Division of General Motors. THE PONTIAC AGREEMENT The Agreement between Cecil Corley Motor Company, Inc. and Pontiac Motor Division is identical in form with that of all Pontiac dealers in the United States, including Broadway Motor Company, with minor exceptions, such as the designation of the area of sales and service responsibility. The Agreement is entitled “Pontiac Dealer Selling Agreement”, and consists of (1) the Dealer Sales Agreement, a three-page document containing the general purposes, considerations and parties; (2) a booklet containing Additional Provisions which are incorporated by reference in the Agreement; and (3) other addenda incorporated by reference. The Agreement is an integrated contract which meticulously spells out the rights and obligations of the parties and includes in Section 26 a provision for a strict enforcement of the parol evidence rule. Similar contracts have been held to be integrated contracts and not subject to parol modification. See, e. g., Victory Motors of Savannah, Inc. v. Chrysler Motors Corp., 357 F.2d 429, 431 (5th Cir. 1966); Globe Motors, Inc. v. Studebaker-Packard Corporation, 328 F.2d 645, 649 (3rd Cir. 1964). Moreover, in Tennessee the parol evidence rule is a rule of substantive law, United States ex rel T.V.A. v. Easement, etc., 271 F.Supp. 55 (E.D.Tenn.1966); Cummings & Co. v. Mascari, 55 Tenn.App. 512, 402 S.W.2d 719 (W.S.1965); Marron v. Scarbrough, 44 Tenn.App. 414, 314 S.W.2d 165 (W.S.1958), which clearly prevents the introduction of parol evidence that would contradict the terms of a written contract. Clayton v. Haury, 224 Tenn. 222, 452 S.W.2d 865 (1970); Livingston v. Livingston, 58 Tenn.App. 271, 429 S.W.2d 452 (W.S.1967); Patterson v. Anderson Motor Co., 45 Tenn. App. 35, 319 S.W.2d 492 (W.S.1959); Marron v. Scarbrough, supra. Thus, this case is to be approached from the written language of the Agreement. Under these agreements, Pontiac grants to the dealer the non-exclusive right to purchase, sell and advertise new Pontiacs and parts. Plaintiff’s witnesses acknowledge that Pontiac dealers were free to advertise and to sell at any price, and did so. Pontiac exercised no control over a dealer’s resale prices. A dealer’s customer could purchase his ear at whatever price he could negotiate. Pontiac dealers were also completely free to sell to anyone, anywhere, and did so. There was no geographical barrier —neither territorial confinement, territorial security nor territorial exclusivity. “Cross-selling” by dealers without regard to the described area of sales responsibility was common. A Pontiac dealer could send his salesmen to scour for sales anywhere and sell to a customer wherever he could find one. No class of customers was excluded. See, United States v. General Motors, 384 U. S. 127, 130, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966). There is no provision in the Agreement requiring a dealer to order or accept any specified quantities, types or models of Pontiac vehicles, nor any obligation on the part of Pontiac Motor Division to deliver any such specified quantities. Cf. Augusta Rambler Sales, Inc. v. American Motors Sales Corp., 213 F.Supp. 889, 893 (N.D.Ga.1963). Section 3C of the Agreement, however, imposed a requirement that the dealer submit written orders for cars before Pontiac Motor Division would ship them. Plaintiff’s own evidence established this to be true. Plaintiff’s witnesses further acknowledged that the Agreement neither contained any express provisions as to the day-to-day method to be used by Pontiac in the distribution of new cars, nor any stipulation that such distribution would be on the basis of either population, personal income, “fair share,” or registrations in a dealer’s area of sales and service responsibility, or any other method. JURY VERDICT The jury’s verdict in favor of plaintiff corporation was: (1) that Pontiac Motor Division had breached its Agreement for which plaintiff was entitled to an award in compensatory damages of $189,000 and punitive damages of $189,000; (2) that Pontiac Motor Division had violated the Automobile Dealers Day in Court Act, 15 U.S.C. §§ 1221-1225, thereby ' causing damages of $50,000 to plaintiff; and (3) that Pontiac Motor Division had violated the Robinson-Patman Act, 15 U.S.C. § 13(e), by discriminating in the furnishing of services, and plaintiff was damaged in the amount of $25,000. In substance, the jury verdict in favor of the defendants was: (1) that defendants Pontiac Motor Division and Paul Porter had not violated the Sherman Act, 15 U.S.C. § 2, by combining or conspiring to monopolize or attempting to monopolize the trade and commerce of new automobiles in the Nashville trading area; (2) that Paul Porter had not induced nor procured a breach of Pontiac Motor Division’s Agreement with plaintiff corporation; and (3) that Cecil Corley, Jr., the individual plaintiff, was barred from claiming under the antitrust laws because he voluntarily executed a full and complete release in favor of Pontiac Motor Division. SUMMARY OF EVIDENCE The evidence developed in this case underscores the importance of the law’s requirement that legal injury be proved and not simply assumed, for neither the testimony nor the documentary evidence in this record supported the jury verdict. Plaintiff introduced no basic dealership records in support of its contentions. Records of vehicle orders and preference lists submitted to Pontiac Motor Division and monthly distribution reports received from Pontiac were all destroyed or otherwise not available. The evidence is that destruction of important dealership records took place while plaintiff contemplated litigation and even after this litigation had commenced. Certainly, Pontiac Motor Division cannot be penalized for plaintiff’s destruction or failure to keep essential records. See Associated Press v. Taft-Ingalls Corp., 340 F.2d 753, 765-766 (6th Cir. 1965). This Court agrees with the Court in Woolner Theatres, Inc. v. Paramount Pictures Corp., 333 F.Supp. 658, 661 (E.D.La.1970) when it noted: “It is inconceivable that those records would have been destroyed after the suit was filed, or even after the decision was made to file the suit, if they would not indict plaintiffs.” Where the requisite evidentiary tests are lacking, such as in this case, because plaintiff destroyed its records (even after litigation commenced) or chose not to produce such records, “heed must be given to the burden of proof.” Shapleigh v. Mier, 299 U.S. 468, 475, 57 S.Ct. 261, 264, 81 L.Ed. 355 (1937, Cardozo, J.). Plaintiff “must always produce all the evidence he can” and “the best available evidence.” William Goldman Theatres, Inc. v. Loews, Inc., 69 F.Supp. 103, 106 (E.D.Pa. 1946), aff’d per curiam, 164 F.2d 1021 (3rd Cir.), cert. denied, 334 U.S. 811, 68 S.Ct. 1016, 92 L.Ed. 1742 (1948); Riss & Co. v. Association of American Railroads, 190 F.Supp. 10, 18 (D.D.C.1960), aff’d, 112 U.S.App.D.C. 49, 299 F.2d 133, 136 (1962). The law requires that where a party attempts to show injury by reason of lost sales or profits, it must present direct evidence of such losses caused by the alleged unlawful conduct. Dantzler v. Dictograph Prods., Inc., 309 F.2d 326, 329 (4th Cir. 1962), cert. denied, 372 U.S. 970, 83 S.Ct. 1097, 10 L.Ed.2d 133 (1963); Herman Schwabe, Inc. v. United Shoe Mach. Corp., 297 F.2d 906, 913 (2d Cir.), cert. denied, 369 U.S. 865, 82 S.Ct. 1031, 8 L.Ed.2d 85 (1962); American Sea Green Slate Co. v. O’Halloran, 229 F. 77, 81 (2d Cir. 1915). In the Court’s opinion, plaintiff’s evidence failed to even approach these standards. After careful re-examination of the evidentiary record, the Court has confirmed its belief, tentatively reached earlier, that there is no substantial evidence upon which a jury or court could support such a finding, and that the plaintiff did, indeed, go to the jury only on the basis of speculation, surmise or conjecture. I BREACH OF CONTRACT As previously noted, the release of January 19, 1966, executed by the individual plaintiff, effectively barred all claims for breach of contract prior to that date; consequently, the breach of contract issue as submitted to the jury dealt only with the corporate plaintiff, Cecil Corley Motor Company, Inc., and only with the Pontiac Agreement of January 19,1966. The plaintiff’s contentions concerning breach of the Agreement were that in its area of sales responsibility Pontiac Motor Division had: (1) failed to create and maintain “product good will;” (2) failed to provide saleable motor vehicles, parts and accessories at “fair and competitive prices” and, in fact, had destroyed the “competitive price market” for such products; (3) failed to provide from available supply motor vehicles in quantities to meet plaintiff’s requirements; and (4) failed to provide assistance and service to plaintiff in meeting its sales and service responsibilities. The Court shall consider each of these contentions seriatim. A. Failure to Maintain Product Good Will There is no proof in this record to sustain the contention that General Motors failed to maintain, or acted in any way to destroy, the product good will in plaintiff’s area of sales responsibility. The Court turns to the written provisions of the Agreement of January 19, 1966, to determine the contractual obligations of the parties, and notes that the Agreement provided: “. . . that Pontiac will assist in creating a demand for such products by advertising in various advertising media; . . . ” And in Section 13 thereof: “In order that Pontiac dealers may be assured the benefits of comprehensive advertising of Pontiac products, Pontiac agrees to establish, pay for, and maintain advertising and promotional programs to promote the sale of Pontiac products for the mutual benefit of Pontiac and Pontiac dealers and to administer such programs on a national and local basis.” There is no evidence in this record that these contract provisions were breached by Pontiac Motor Division. To the contrary, plaintiff’s own witnesses clearly demonstrated that Pontiac had fulfilled its obligations under those provisions of the Agreement. Plaintiff’s expert conceded that Pontiac vehicles enjoyed good public acceptance, that during the 1960’s, Pontiac was a “really hot ear” in great demand by dealers and consumers, and that GM “externally” had created a demand for the Pontiac line. No witness gave any testimony concerning any alleged adverse reputation of Pontiac products. Nor was any attempt made to show that lack of advertising by Pontiac Motor Division had caused plaintiff to experience a loss of sales, or greater advertising expenditures, or to have suffered damages. Accordingly, plaintiff’s contention in this regard is not supported by the record. B. Destruction of the Price Market The essence of this contention, consisting of two parts, was that Pontiac Motor Division had: (1) failed to provide plaintiff with products at “fair and competitive” prices, and (2) failed to maintain, and, by its actions destroyed the “competitive price market” for those products in plaintiff’s area of sales responsibility. There is no evidence from which the jury could rationally infer that Pontiac Motor Division had sold products to plaintiff other than at “fair and competitive” prices. In this context, plaintiff did not define nor attempt to défine what it meant by Pontiac Motor Division’s failure to furnish vehicles at “fair and competitive” prices. There is no evidence that the fair value of Pontiac vehicles was other than as reflected by the prices paid for those vehicles by plaintiff. There is no evidence that the prices charged by Pontiac Motor Division for its vehicles were not competitive with the prices charged by other automobile manufacturers for similar vehicles. There' is no evidence that plaintiff paid any more to Pontiac Motor Division for its automobiles than any other Pontiac dealer in the country. On the contrary, the evidence is wholly to the effect that Pontiac vehicles were highly merchandisable and desirable products and that Pontiac Motor Division had sold new vehicles to plaintiff at the same prices charged to all other Pontiac dealers. Further, plaintiff’s own witnesses testified that they had no evidence that any Pontiac dealer had ever purchased a Pontiac vehicle, part or accessory at a price other than the same price that was charged by Pontiac to the plaintiff. Plaintiff was unable to introduce any evidence of the actual price which it paid for a single model Pontiac automobile, part or accessory, much less testimony that such purchases were not made at “fair or competitive” prices. The evidence is also to the effect that plaintiff made “fair” profits on the sale of its Pontiacs and claimed to have sold them for higher prices than did defendant Paul Porter. With respect to the second part of this contention, there is no evidence from which a jury could rationally infer that Pontiac Motor Division had failed to maintain, or by its actions, had destroyed the competitive price market. This contention, in any event, is legally untenable. As admitted by plaintiff, there is no provision in the Agreement obligating or imposing any duty upon Pontiac Motor Division to assist plaintiff in maintaining any price at which it could sell its products in its area. For this reason, Pontiac Motor Division could not have breached any of the written provisions of its Agreement with plaintiff and, therefore, this contention is without legal foundation. On the contrary, the evidence is wholly to the effect that Pontiac Motor Division neither had the right to control, nor even any say, as to where a dealer sold his automobiles or the prices at which he chose to sell them. Indeed, plaintiff’s evidence is that Pontiac Motor Division had never participated with any dealer in the fixing or the setting of the resale price of a single automobile. This total absence of proof that Pontiac Motor Division had failed to comply with one of the written terms of the Agreement is, therefore, sufficient to dispose of this contention. Moreover, even if the Agreement had provided that Pontiac Motor Division would assist a dealer in maintaining a certain competitive price level, or had Pontiac Motor Division undertaken to maintain resale prices at any level, in this Court’s opinion this would have been a per se violation of the antitrust laws. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1948) ; United States v. Nat’l Ass’n of Real Estate Boards, 339 U.S. 485, 70 S.Ct. 711, 94 L.Ed. 1007 (1950). The Court feels compelled to set out what it believes to be the legally untenable contentions advanced by plaintiff during the course of the trial. The evidence is that plaintiff sought to maximize revenues and obtain the highest profits possible on each new vehicle sale. Certainly, as it was candidly expressed by its President, Cecil Corley, Jr., the plaintiff was free to get the top dollar out of every car sold, just as any other Pontiac dealer, including Paul Porter, was free to sell for less or even more. The evidence is also that plaintiff made “fair profits” on the sale of its new Pontiacs and that its gross profit margins were comparable to those of Paul Porter. Although plaintiff claimed to have a reputation for selling new Pontiacs at higher prices than did Paul Porter, it presented no other credible evidence on this point. Contrary to plaintiff’s claim, it may not impose on Pontiac Motor Division an obligation to assist it in exacting from consumers whatever prices it may want. The evidence is that plaintiff wanted Pontiac Motor Division to ship to competing dealers new vehicles sufficient only to meet their market requirements in their area of sales responsibility, based primarily on new car registration figures, and that Pontiac Motor Division should not allow dealers, such as Paul Porter, to sell a substantial number of new Pontiacs in plaintiff’s area because it was making “shoppers” out of the residents in its area. Plaintiff disliked matching wits with aggressive price-conscious shoppers who could “buy it for less a few miles down the road,” and the evidence is also to the effect that plaintiff sought, by threat of litigation, to have Pontiac Motor Division take steps to eliminate the “cross-selling,” “undercutting” of prices, and advertising of new Pontiacs by Paul Porter in plaintiff’s area. Plaintiff’s witnesses even contended that Pontiac Motor Division should not only have restricted the shipment of new vehicles to Paul Porter, who obviously was “cutting into the sales” made by plaintiff, but that it should have applied sanctions. The law is clear that resale price maintenance or territorial restrictions or attempts to do so are “conclusively presumed to be unreasonable and illegal without elaborate inquiry as to the precise harm they have caused . ” United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 210, 60 S.Ct. 811, 84 L.Ed. 1129 (1948); Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968); Simpson v. Union Oil Co. of California, 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964); United States v. Bausch & Lomb Optical Co., 321 U.S. 707, 64 S.Ct. 805, 88 L.Ed. 1024 (1944); United States v. Arnold, Schwinn, 388 U.S. 365, 87 S.Ct. 1856, 18 L.Ed.2d 1249 (1967). When a supplier goes beyond a mere announcement of suggested resale price policy and enlists an agreement by the retailer to adhere to a price at which it will resell the products that it buys, then the seller has put together a combination in violation of Section 1 of the Sherman Act. United States v. Parke-Davis and Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed.2d 505 (1960). It follows that efforts by a supplier to help a dealer exact certain resale prices from customers would also be unlawful. See, Albrecht v. Herald Co., supra; United States v. General Motors, 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966). It also follows that Pontiac Motor Division could not limit the shipments of vehicles, nor apply sanctions, to Paul Porter in order to cause him to stop advertising or selling in plaintiff’s area, because this would be tantamount to an agreement not to compete and would be a per se violation of the Sherman Act. United States v. House of Seagrams, Inc., 1965 Trade Cases, [¶ 71,517 (D.Fla.1965); United States v. Toy Guidance Council, Inc., 1957 Trade Cases, ¶[ 68,831 (D.C.N.Y.1957). See also: United States v. Gasoline Retailers Ass’n, Inc., 285 F.2d 688 (7th Cir. 1961); Plymouth Dealers’ Ass’n of Northern California v. United States, 279 F.2d 128 (9th Cir. 1960). Moreover, any attempt by this plaintiff and by Paul Porter to agree on areas of sales responsibility, through the intervention of Pontiac Motor Division or any other means, would constitute an attempt to divide the market and eliminate competition between the dealers and would similarly be a per se violation of the Sherman Act. United States v. Topco Associates, Inc., 405 U.S. 596, 92 S.Ct. 1126, 31 L.Ed.2d 515 (1972); United States v. Arnold, Schwinn Co., supra; United States v. General Motors, 384 U.S. 127, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966); Hobart Brothers Company v. Malcom T. Gilliland, Inc., 471 F.2d 894 (5th Cir. 1973); American Motor Inns v. Holiday Inns, 365 F.Supp. 1073 (D.N.J.1973). Plaintiff sought to avoid the clear implications of its attempts to solicit Pontiac Motor Division’s engagement in unlawful activity by contending that Paul Porter was undercutting prices and selling from 50% to 80% of his new vehicles outside his area, and insisted that Pontiac Motor Division was required to prevent that activity. No such obligation can be construed from the Agreement, nor can it be found in law. Keen rivalry and unfettered price competition are the essence of competition which the Sherman Act was designed to promote. Plaintiff itself admitted that had Pontiac Motor Division limited the number of vehicles shipped into any area, this would have lent aid in supporting a high retail price for the dealer and, further, had Pontiac Motor Division done so at the urging of the dealer, the result would have amounted to illegal price-fixing. Furthermore, plaintiff’s Vice President made it clear that Pontiac Motor Division was expected to confine Paul Porter’s major selling efforts to his own area so that plaintiff could preserve a “competitive” price in its area. Plaintiff cannot recover damages from General Motors for its failure to take action which it was not contractually obligated to take and which, if undertaken, would have constituted a clear and obvious violation of the Sherman Act. C. Insufficient Product Availability Again, the Court observes that one must keep in mind that we are dealing with the period of January 19, 1966 and forward, and that any contentions prior to that date do not affect Cecil Cprley Motor Company, Inc., which was not in existence. Additionally, the dealer who allegedly might have been affected by any activity prior to January 19, 1966, Cecil Corley, Jr., had come to an amicable accord with General Motors and had executed the heretofore mentioned release. With full knowledge of the terms and conditions of the Agreement, the market as it then existed, its history and its condition, Cecil Corley Motor Company, Inc. took the market as it was when it applied for and received a new Agreement to sell Pontiac automobiles. Plaintiff’s President admitted familiarity not only with the terms and conditions of the 1966 Agreement, but also with the prior substantially identical Agreements he had entered into, from time to time, with Pontiac Motor Division. There is no evidence from which a jury could rationally infer that Pontiac Motor Division had failed to make products available to plaintiff “in quantities to meet Dealer’s reasonable requirements in Dealer’s area of sales responsibility.” To the contrary, the evidence establishes that Pontiac Motor Division had fulfilled its obligations under this provision of the Agreement. Since plaintiff’s own witnesses admitted that from the period beginning at least as early as April 1967, until the voluntary termination of the Agreement, the plaintiff corporation had been supplied with all of the Pontiac vehicles that it had wanted and that it could sell, it follows that plaintiff’s contention of alleged product insufficiency narrowed down to the period from January 19, 1966 to April 1967. Thus, to sustain its contention as to this 14 to 15 month period, plaintiff had to prove three things: (1) that it actually ordered more vehicles than it received from Pontiac Motor Division; (2) that the particular model vehicles ordered, but not supplied, were available for delivery, i. e., there was no product shortage at the time, or if there existed a period of product shortage such as was customary in the business during the months of new model introduction (October-Deeember 1966), that Pontiac Motor Division failed to allocate vehicles in a fair and reasonable manner; and (3) that Pontiac failed to make such vehicles available for the “reasonable requirements” of plaintiff’s area of sales responsibility. Plaintiff has not even met its threshold burden. There is no evidence from which the jury could rationally infer that Pontiac Motor Division had failed to supply plaintiff with all the vehicles it had ordered. Viewing the evidence in the light most favorable to plaintiff, the facts are that between January 19, 1966 to April 1967, Paul Porter received approximately twice the number of Pontiacs that plaintiff received. However, plaintiff’s own evidence is wholly to the effect that plaintiff never received vehicles unless they were first ordered and that Pontiac Motor Division required submission of such orders before vehicles would be shipped. See: Staten Island v. American Motors Sales, 169 F.Supp. 378, 380-381 (D.N.J.1959). Plaintiff made no attempt to show that even a single vehicle order had not been supplied, and plaintiff’s counsel even conceded that plaintiff was' not contending that Pontiac Motor Division had failed to supply vehicles as ordered, for it had no such evidence, but did contend that some of the orders had not been filled in a timely manner. Even after this admission, plaintiff was unsuccessful in presenting any proof to justify this fallback contention. Thus, it is clear from this record that plaintiff had to first order the vehicles before Pontiac Motor Division could supply them, and that Pontiac had fulfilled its part of the bargain. Plaintiff’s own evidence is also that plaintiff was unable to concentrate its full efforts on the Pontiac line of vehicles, as had Paul Porter, because of its divided interest in handling four franchised lines of vehicles. Further, plaintiff's evidence showed that it (and its predecessor) experienced difficulties in operating a four franchise dealership because it was substantially undercapitalized and suffered from frequent cash shortages. These problems caused plaintiff difficulty in maintaining a sufficient inventory of different models of new vehicles; credit limitations also had a bearing on the number of new vehicles in inventory at any given time. Plaintiff’s Vice President admitted that the financing institution which did the floor-planning for its new vehicles had, from time to time, pointed out to plaintiff when it had too large an inventory. No evidence was introduced at all concerning the number, kind, model and col- or of new Pontiac vehicles actually ordered at any time. Nor was there any evidence concerning the availability of any car ordered by plaintiff, nor that cars were ordered, but were not delivered or were unreasonably delayed although available. No attempt was made to prove even a single instance where plaintiff wanted and ordered a particular automobile which Pontiac had available and which it had refused to supply. To the contrary, as noted previously, plaintiff’s witnesses testified that they had no specific proof of a single order which had not been filled by Pontiac. Moreover, there is no evidence from which a jury could rationally infer that plaintiff was ever supplied with unwanted or unordered vehicles. On the contrary, plaintiff testified that it never received any Pontiac vehicles unless it had ordered them of its own free will. The evidence above summarized is wholly to the effect that plaintiff failed to introduce evidence of even one single occasion that an automobile of a specific model number, color and accessories was ordered and had not been shipped or ordered but unreasonably delayed in shipment by Pontiac. Since there is no evidence that Pontiac Motor Division had failed to fill plaintiff’s orders nor that it had furnished plaintiff with unwanted automobiles, it follows that the jury could not rationally have inferred that Pontiac had not complied with its obligations in furnishing vehicles to meet plaintiff’s “reasonable requirements” in its area of sales responsibility. There is no evidence presented by any person, plaintiff or its experts, as to what constituted “reasonable requirements” in plaintiff’s area of sales responsibility. Plaintiff’s President, Cecil Corley, Jr., attempted to cure this deficiency by testifying about a vague, allegedly simple concept, which he admitted was not to be found in the franchise agreement, known as “fair share.” He testified only that the reasonable requirements would be a “fair share,” of the available new vehicles; i. e., enough vehicles to “take care of my area of sales responsibility” and a percentage of any oversupply. He also testified that if another adjoining Pontiac dealer ordered and received vehicles above the “reasonable requirements” of his area of sales responsibility then he got “too many” cars, and that Pontiac Motor Division should have refused to fill orders which exceeded that dealer’s “reasonable requirements.” Thus, plaintiff equated the concept of “fair share” distribution with that of territorial limitation, and that Pontiac should have predetermined this distribution “figure” or the number of vehicles that a dealer should receive, and no more. No such obligation is to be found in the Agreement nor the law. This Court is unable to see any correlation between the distribution system used by Pontiac Motor Division as disclosed in this record and the so-called hypothetical concept of “fair share” distribution as proffered by plaintiff. However, in addition to not providing the jury nor this Court with any definitive figure representing the nebulous “fair share,” plaintiff’s own evidence established that its operations were geared for concentrated selling outside of its own area of sales responsibility and that it not only attempted to sell, but actually did sell approximately 50% of the Pontiacs (as well as Oldsmobiles) that it had received outside of its own area. Plaintiff could have, had it chosen to do so, sold each and every one of those Pontiacs in its own area of sales responsibility, as its own witness, Dr. Leonard, so testified.. The evidence is also that while plaintiff was selling 50% of its Pontiacs outside its area of sales responsibility, competing Pontiac dealers were selling approximately 50% of the Pontiacs in plaintiff’s area. Therefore, the evidence is indeed that Pontiac Motor Division had actually supplied plaintiff with its “reasonable requirements,” had it chosen to sell all of its cars in its own area of sales responsibility. Plaintiff attempted to show that its “fair share” might be the number of new Pontiac vehicles registered in its area. However, it was conceded that registration figures did not purport to show, nor did they reflect where cars were sold, and by whom. The evidence was further clear that Pontiac Motor Division did not restrict dealer sales to their own areas of sales responsibility. Certainly, the evidence and the testimony of plaintiff’s own witnesses were to the effect that cross-selling was an accepted and prevalent practice, not only in plaintiff’s area of Sumner County, but throughout the entire Nashville trading area covering several counties. Sumner County borders Davidson County and the clear implication from the record was that many people in Sumner County worked in Davidson County. No evidence was offered as to the number of Sumner County residents who might have bought their automobiles in Davidson County, or of the Davidson County residents who might have bought theirs in Sumner County, and so forth. It is obvious that no rational inference could be drawn as to plaintiff’s “fair share” on the basis of registration figures, since cross-selling effected the validity of those figures, and because registration figures admittedly did not show which dealer sold the car, nor the location of the selling dealership. Professor Leonard, the plaintiff’s expert, hypothetically compared the relative family income of residents in Sumner County with those in Broadway Motor Company’s area. He insisted, however, that this comparison was not to be interpreted as advocating that this was either a valid method of distributing automobiles or the system actually used by Pontiac, for he was unfamiliar with Pontiac’s system of distribution. However, “if” Pontiac distributed vehicles according to family income, then certain conclusions could be reached as to the “market potentials” of the two dealers. A party may not put forth a theory of automobile distribution which he himself does not advocate and which ignores the evidence in this record, such as the managerial strengths of the two dealerships, their financial resources, their marketing abilities and philosophies, as well as the legally accepted practice of cross-selling and the right of a consumer to purchase his Pontiac from any dealer that he chooses. Plaintiff’s expert virtually ignored the evidence that Pontiac’s distribution was not based upon “family income,” but on orders received and prefereneed and dealer retail sales. A comparison of the so-called “market potential” of plaintiffs area of sales responsibility with only one of a number of adjoining and nearby areas of sales responsibility of any number of Pontiac dealers, furnishes no rational inference of the reasonable requirements in plaintiffs area any more than it does for establishing the reasonable requirements of those of Broadway Motor Company or of any other Pontiac dealer. It is sheer speculation to suppose or contend, in this era of a highly mobile population and price-consciousness, that the distribution of any particular make of automobile is determinable on the basis of the “family income” of the people in an area, as if the people have no choice but to deal only with dealers in their area. To the contrary, the evidence is that people shop around for the best deal and that dealers engage in vigorous cross-selling. Professor Leonard’s theory sought to compare potential customers on the basis of their family income in relation to all brands of automobiles, but, on the other hand, plaintiff’s contentions were only that Pontiac Motor Division had failed to fill its reasonable requirements. Plaintiff’s failure to introduce the requisite evidentiary facts to show that Pontiac Motor Division had failed to deliver even a single vehicle as ordered is not cured by reference to a so-called market potential. The illogical leap from Professor Leonard’s premise of potential customers on the basis of family income to plaintiff’s “fair share” theory is but sheer surmise and speculation and contrary to the evidence. In a further attempt to substitute for the lack of requisite proof, plaintiff made a comparison between cars received. by plaintiff and only one dealer in an adjoining area of sales responsibility. Plaintiff did not contend that the adjoining dealer had not ordered those vehicles, nor did plaintiff offer any evidence that it had ordered more vehicles than it had received. Plaintiff asserted only that the adjoining dealer received more cars, and more desirable cars, allegedly quicker. However, even as to these fallback contentions, there was no evidence of such facts, even if pertinent. There was a general opinion expressed by the President and chief stockholder of plaintiff, that as a result of driving by he noticed certain cars on Broadway Motor Company’s lot. There was also hearsay evidence received from a few residents in plaintiff’s area who purchased cars from the adjoining dealer. It is significant that no comparisons were made by plaintiff showing the model, color, etc. of vehicles received by plaintiff and the adjoining dealer. It is also most significant to the Court that Paul Porter had made his records available to plaintiff, but plaintiff did not elect to examine them. This is very important because the evidence was that Broadway Motor Company would trade for cars with other adjoining Pontiac dealers and would take all models and kinds of vehicles offered by Pontiac whereas plaintiff was selective in his ordering practices and concentrated on so-called “hot” cars. From the evidence summarized above, it is clear that plaintiff did not prove that Pontiac Motor Division had, in any way, failed to furnish vehicles to plaintiff to meet the dealer’s requirement during the period of January 19, 1966 to April 1967, nor that Pontiac Motor Division had furnished Paul Porter with “too many” vehicles. The record is clear that distribution of Pontiac vehicles was not made on the basis of a dealer’s area or territory but on the basis of sales, and that cross-selling was a prevalent and accepted practice. It is no breach of plaintiff’s Agreement to merely show that one Pontiac dealer received a greater number of vehicles than did plaintiff; this fact cannot rationally serve as a substitute for the missing requisite evidentiary proof. Isolated figures and unadjusted comparisons cannot support the asserted preferences, and any illusions that they create are quickly dispelled by the evidence, for it appears that Paul Porter would trade with other Pontiac dealers for cars and would order most any type or kind of vehicle available whereas plaintiff was “selective” in the kinds of vehicles it would order. Additionally, plaintiff was handicapped in operating a multiple franchise dealership because of its financial problems whereas Paul Porter was adequately capitalized and operated only a Pontiac dealership. There is no evidence from which the jury could rationally infer that the distribution system actually employed by Pontiac Motor Division was other than fair and reasonable, nor that it had not been fairly applied. Plaintiff offered no evidence in any way to contradict the method used by Pontiac Motor Division in distributing vehicles. On the contrary, as part of plaintiff’s case in chief, it placed in evidence exhibits demonstrating that distribution of new vehicles was made on the basis of retail sales made by the dealer, and that during periods of product shortage, Pontiac vehicles were distributed to dealers on an “earned share,” based upon each dealer’s prior sales history. During the early months of the new models (October-December), Pontiac Motor Division distributes its vehicles on the basis of past sales history, i. e., dealers receive a pro rata percentage of those units based upon their past sales so that the more vehicles a dealer sells the more units he will receive. The effect is to divide production among all dealers in a Zone, including plaintiff and Paul Porter, equitably and in a manner which maintains relative equality among all dealers. This principle has been recognized as reasonable and fair. See: Independent Iron Works, Inc. v. United States Steel Corp., 322 F.2d 656, 662, 668, 177 F.Supp. 743, 748-749 (9th Cir. 1963), cert. denied, 375 U.S. 922, 84 S.Ct. 267, 11 L.Ed.2d 165 (1963); Banana Distributors v. United Fruit Co., D.C., 162 F.Supp. 32, 45, rev’d on other grounds, 269 F.2d 790 (2d Cir. 1957); Rogers v. Douglas Tobacco Board of Trade, 244 F.2d 471 (5th Cir. 1957) ; Dipson Theatres, Inc. v. Buffalo Theatres, Inc., 190 F.2d 951, 958-959 (2d Cir. 1951), cert. denied, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 691 (1952); Leach v. Ford Motor Company, 189 F.Supp. 349, 352 (D.C.Cal.1960). The Pontiac Agreement provided that it was to be interpreted according to the laws of the State of Michigan. The Michigan Statutes Annotated, § 19.-2615(a) provides that: “[where availability of an adequate supply is a] contingency, the non-occurrence of which was a basic assumption on which the contract was made then a seller must make reasonable allocation of available supply among its customers, as the next Section, § 19.-2615(b) provides: “Where the causes mentioned in paragraph (a) affect only a part of the seller’s capacity to perform, he must allocate production and deliveries among his customers ... He may so allocate in any manner which is fair and reasonable.” (Emphasis supplied) Thus, under Michigan law (or even if Tennessee law applied, for these identical provisions are part of the Tennessee Uniform Commercial Code T.C.A. § 47-2-615(a) and (b)), Pontiac had a duty, during periods of short supply, to allocate available production among its customers on a fair and reasonable basis. The evidence is that it did so. Plaintiff’s own witnesses admitted that during the entire period of January 1966 to April of 1967 Pontiac had furnished it with a greater “days supply” of Pontiacs than it had generally done with other dealers. In the months of January, February and April of 1966, plaintiff’s days supply of Pontiacs was greater than all other Pontiac dealers in Middle Tennessee, and plaintiff’s days supply was greater than that of Broadway Motor Company for seven months of 1966. Plaintiff's proof virtually ignored this fundamental requirement of proving product availability. As to this matter of product availability, one more fact is of major importance to the Court, not only in this context, but with regard to all of plaintiff’s contract claims. On January 19, 1966, when the plaintiff came into existence, it knew through its officers and directors the history and practices of Pontiac Motor Division’s system of distribution. It knew that its president, Cecil Corley, Jr., had vigorously attacked and opposed that system. It knew that Mr. Corley contended and continued to assert that the Pontiac market in its area of sales responsibility had been materially impaired by alleged discrimination in product availability resulting in alleged destruction of price stability. However, despite this knowledge and without any alleged additional inquiry as to the system used by Pontiac, the corporation solicited and obtained a franchise to sell Pontiacs. It is this Court’s view that because of the long history and experience of the president and the sole stockholder of plaintiff corporation with Pontiac prior to the acquisition of this franchise, that this corporation took the established Pontiac distribution system as it found it. If it desired a different system it could have attempted to negotiate to effect same. Of course, any antitrust claim or complaint that Cecil Corley, Jr., might have had against Pontiac, or concerning its distribution system, was obviously, as found by the jury, released by the January 19, 1966 release. D. Lack of Assistance and Service There is no evidence from which a jury could rationally infer that Pontiac had failed to assist plaintiff in meeting its sales and service responsibilities. On the contrary, the evidence is that Pontiac Motor Division not only cooperated but on numerous occasions responded to plaintiff’s criticisms with personal visits of its top officials from the Central, Regional and Zone offices and even by personal visits and telephone contacts from the Director of Dealer Relations of General Motors Corporation in Detroit. There is no evidence that Pontiac Motor Division had in any way failed to provide the assistance required. Nor is there any evidence that plaintiff suffered any pecuniary loss because of such alleged failures on the part of Pontiac Motor Division. After careful and detailed re-examination of this record, the Court has confirmed its tentative view reached earlier, that there is total failure of proof regarding plaintiff’s contention that General Motors had breached its contract. Obviously, since the jury’s award of punitive damages was predicated upon the breach of contract verdict, this award also must fail. However, the Court notes its grave reservations regarding the legal propriety of an award of punitive damages, as they are generally not recoverable for breach of contract, either under Tennessee law, Bland v. Smith, 197 Tenn. 683, 277 S.W.2d 377 (1954); McDonald v. Stone, 45 Tenn.App. 172, 32.1 S.W.2d 845 (1959); Booth v. Kirk, 53 Tenn.App. 139, 381 S.W.2d 312 (1963); or, under Michigan law, Caradonna v. Thorious, 17 Mich.App. 41, 169 N.W.2d 179 (1969); Oppenhuizen v. Wennersten, 2 Mich.App. 288, 139 N.W.2d 765 (1966). Additionally, and also obviously, this is not the situation where any exception to the above general rule should be applied, for there is no evidence of fraud, malice, gross negligence or oppression to sustain the award of punitive damages. E. Plaintiff’s “Destruction of the Market” Theory The major portion of the evidence introduced by the plaintiff in an attempt to show discrimination in availability of Pontiac products and the destruction of price stability in plaintiff’s area of sales responsibility dealt with the period prior to January 19, 1966. Again it is to be noted that plaintiff came into existence on January ]9, 1966. Plaintiff’s predecessor claimed that the “area of sales responsibility” which plaintiff later acquired had been allegedly destroyed with regard to price stability due to the practices of the defendant Pontiac in concert with the defendant Porter. A number of theories were advanced. The major item, however, was the alleged participation of Pontiac in a scheme which had the effect of using a dealer (Broadway Motor Company) as a so-called “stimulator dealer” in an adjoining area of sales responsibility. This was accomplished, according to plaintiff, by General Motors delivering to the alleged stimulator dealer more cars than his area justified, thus permitting him to sell his excess cars in plaintiff’s area of sales responsibility, at a price which was less than that at which plaintiff or plaintiff’s predecessor chose to sell the same product. Plaintiff asserted that in this manner the defendant General Motors, in effect, either set prices or destroyed price stability. To place this contention in perspective, the following facts are found by this Court to be controlling: (1) The jury found that there was no conspiracy between General Motors and Paul Porter and found no wrongful conduct whatever by Paul Porter. (2) The jury found that any alleged wrong committed by the defendant General Motors, which occurred prior to January 19, 1966, was released by plaintiff’s predecessor. (3) There is not one iota of evidence in the record that any alleged wrongful acts of General Motors occurred or continued after January 19,1966. (4) There is not one iota of evidence in the record that any act by General Motors affected the price structure or price stability in plaintiff’s area of sales responsibility after January 19, 1966. (5) There is not one iota of evidence in the record that General Motors treated the plaintiff, from January 19, 1966 and forward, in any manner different from the manner in which General Motors treated any other new dealer or franchisee. The Court will not repeat herein the various other infirmities in plaintiff’s theories which are discussed in detail hereinbefore and hereafter. It is elementary that plaintiff’s allegations, or any evidence of alleged past misconduct, concerning one dealer for which a release has already been obtained, is not proof of the existence of this conduct as to a successor dealer. II THE DEALER ACT The plaintiff charged Pontiac Motor Division with a violation of the Automobile Dealers Day in Court Act, 15 U.S.C. § 1221, hereinafter referred to as “the Act” or “the Dealer Act.” The Act provides that an automobile dealer may sue in Federal Court for the failure of a manufacturer: “to act in good faith in performing or complying with any of the terms or provisions of the franchise, or in terminating, cancelling, or not renewing the franchise with said dealer: Provided, that in any such suit the manufacturer shall not be barred from asserting in defense of any such action the failure of the dealer to act in good faith.” 15 U.S.C. § 1222 Plaintiff’s claims concerning Pontiac’s alleged violation of the Dealer Act closely paralleled its allegations concerning the alleged breach of contract. Plaintiff charged that Pontiac failed to act in good faith with regard to (1) the distribution and availability of new Pontiac automobiles in plaintiff’s area of sales responsibility; (2) the promotion of product good will within that area; and (3) the maintenance of a competitive price market in its area. In addition to these charges, which paralleled the claims of breach of contract, plaintiff also claimed that Pontiac failed to act in good faith with regard to the performanee of service and warranty work and reimbursement of warranty claims, and, finally, claimed that Pontiac generally failed to act in a fair and honest fashion. All of these “failures” on Pontiac’s part were alleged to have taken place during “the time in question,” which was the three-year period prior to the time plaintiff filed its complaint, i. e., from October 27, 1966 to October 27, 1969 However, as previously noted, the “period in question” with regard to the claim that Pontiac failed to act in good faith in the distribution and availability of new Pontiac vehicles would be only from October 27, 1966 to April of 1967 since the plaintiff’s evidence was that it received all the Pontiacs it wanted and could sell after that time Consequently, regarding the distribution .claim, the applicable period would be from October 27, 1966 to April 1967, and as to the rest of the claims from October 27, 1966 to October 27, 1969. A. The Requirements of the Dealer Act The question to be resolved is whether the evidence adduced at the trial is legally sufficient to support a finding of lack of “good faith” as that term is defined in the Act. The Act creates a cause of action only in two specific instances: (1) when the manufacturer fails to act in good faith in terminating, cancelling or failing to renew the written franchise agreement with the dealer, or (2) when the manufacturer fails to act in good faith in complying with the terms of that written franchise agreement. Only the second aspect of the Act is involved herein Good faith is specifically defined in the Act, as follows: “The term ‘good faith’ shall mean the duty of each party to any franchise, and all officers, employees, or agents thereof to act in a fair and equitable manner toward each other so as to guarantee the one party freedom from coercion, intimidation, or threats of coercion or intimidation from the other party: Provided, That recommendation, endorsement, exposition, persuasion, urging or argument shall not be deemed to constitute a lack of good faith.” (Emphasis supplied) 15 U.S. C. § 1221(e) This statutory definition has been construed literally by the Courts so that the existence or non-existence of lack of good faith must be determined in a context of actual or threatened coercion or intimidation. H.R.Rep.No.2850, 84th Cong. 2d Session, U.S.Code Cong, and Admin.News pp. 4596, 4603 (1956); 7 A.L.R.3d 1182. The Courts have uniformly and consistently held that there can be no recovery under the Act without a showing that the manufacturer was engaged in coercion, intimidation or threats of coercion or intimidation with respect to the dealer. It appears there is no question that “failure to exercise good faith” within the meaning of the Act has a limited, restricted meaning. It does not mean “good faith” in a hazy, general way, nor does it mean unfairness, but the absence of coercion or intimidation. The burden of proving coercion is plaintiff’s. It must show that it was coerced in some way into doing something it had a lawful right not to do, under the threat of sanctions which would otherwise be applied. But more is required than simply coercion and failure to submit, for otherwise the manufacturer would be precluded from insisting upon reasonable and valid contractual provisions. Woodard v. General Motors Corp., 298 F.2d 121 (5th Cir.), cert. denied, 369 U.S. 887, 82 S.Ct. 1161, 8 L.Ed.2d 288 (1962); Berry Brothers Buick, Inc. v. General Motors Corp., D. C., 275 F.Supp. 542, aff’d per curiam, 377 F.2d 552 (3rd Cir. 1967). The evidence presented in this trial clearly shows the absence of any of the prohibitive acts of coercion or intimidation or threats thereof on the part of Pontiac. B. Plaintiff’s Specific Allegations There is no evidence in this record from which a jury could rationally infer that Pontiac failed to act in good faith, in the context of coercion and intimidation, with regard to the distribution and availability of new Pontiac automobiles. This Court dealt with the evidence in this regard in great detail in its discussion of this allegation as part of plaintiff’s claim of alleged breach of contract, and that discussion will not be repeated here. Viewing the evidence in the light most favorable to plaintiff, as the Court must, the record shows that Pontiac shipped approximately twice the number of automobiles to Porter during the period of October 27, 1966 to April 1967 that it did to plaintiff, and that plaintiff claimed that it had not received its “fair share” while Paul Porter received “too many” or more than his “fair share” of cars for his area of sales responsibility. But the undisputed evidence was that plaintiff could not show even a single instance where Pontiac had refused to deliver cars ordered or unreasonably delayed the delivery of those orders. Plaintiff failed to introduce any proof at all concerning the number, kind, model and color of cars that it had actually ordered at any time, and there was no proof whatever concerning the availability of any Pontiac car ordered by plaintiff. There was no proof that Pontiac had shipped even a single more desirable model automobile to Porter or that Pontiac had made a single vehicle shipment to Porter in a more timely fashion that it did to plaintiff. To the co