H. C. Klopfenstein v. W. P. Pargeter, (Two Cases)

Appellant Klopfenstein appeals from an adverse summary judgment in this diversity action which arose out of an aborted joint venture agreement. The district court ruled that the joint venture had been mutually rescinded or abandoned. Appellant contends he raised a material issue of fact regarding his intent to terminate the joint venture. In the consolidated appeal, Klopfenstein contends attorney’s fees were improperly awarded. We disagree with both contentions and affirm the district court.

Klopfenstein and defendant-appellee Pargeter orally contracted to jointly seek a fast food franchise in Alaska. They met with representatives of the franchisor, prepared to incorporate a business, and arranged for a bank loan. Then Pargeter wrote to Klopfenstein on October 30, 1969, saying that he had decided to sever their joint efforts because of dissatisfaction between them.

Klopfenstein never replied to this letter, but informed the franchisor and the bank by letter that the joint applications were to be withdrawn and that he would compete with Pargeter for the franchise. Klopfenstein took no action to protest Pargeter’s withdrawal from the joint venture or to reconcile his differences…