151 A. 600 | N.J. | 1930
The Atlantic Refining Company secured a decree restraining the defendants from selling or distributing from their gas station in Margate City motor fuel, oil and grease not manufactured or sold by the complainant.
The parties had entered into a contract providing for the installation upon the defendants' premises of pumps, tanks, pipes, apparatus and driveways suitable for retail sale of the refining company's products. These products were to be exclusively sold by the defendants for a period of five years. The contract also provided for liquidated damages in the event of breach.
At the hearing the provision of the contract relating to the exclusive sale of complainant's product was challenged as not embodied in the original instrument. The proofs appear otherwise and demonstrate that the defendants (who claim an alteration) failed to satisfactorily explain the loss of the original copy of the agreement furnished them at the time of execution. Further, the explanation offered, concerning the imperfect and incomplete copy of the contract furnished at the request of the defendants, was both reasonable and sufficient.
A written contract for the sale of merchandise requires no acknowledgment, nor is it invalidated by reason thereof. Hence, it was quite proper to exclude testimony relating to an acknowledgment since neither the presence nor absence thereof would in anywise affect the validity of the contract.
The defendants' contention that the gasoline furnished was watered and dirty was unsupported by sufficient evidence to justify a rescission if one had been made. Shortly after the installation of the equipment an adjustment was made for a small quantity of gasoline claimed to be watered. The proofs, however, indicate that for six months thereafter and until the commencement of the purchase of the competitor's gasoline no complaints were made. The defendants' *29 testimony demonstrates that the gasoline was not watered and was of the same quality as when the contract was made.
The contract in no part was altered or varied by mutual consent.
The agreement provides, in part, as follows:
"It is further agreed that if the party of the second part shall at any time cease to purchase all gasoline, motor fuels, motor oils and greases handled and dispensed through the said system from the party of the first part * * * then, and in such case the said party of the second part * * * is hereby declared to be in default hereunder, and the party of the first part may * * * take immediate possession of the said system and remove the same without * * * hindrance * * *, and charge the party of the second part with the sum of nineteen hundred and twenty dollars ($1,920), which, it is agreed, is the fair and reasonable cost of the installation and removal of the system and the cost of the improvements mentioned hereunder * * * or allow said system to remain and charge the party of the second part with the sum of twenty-eight hundred and twenty dollars ($2,820), the agreed value of the system and improvements, and thereupon said sum charged shall immediately become due and payable by the party of the second part, and upon the payment of said sum title to said system is to pass from the party of the first part to the party of the second part."
The foregoing provisions did not defeat the complainant's right to enforce in equity the following provision of the contract:
"In consideration of the investment required, it is agreed that the above location shall be used only for the sale of Atlantic Gasoline and Atlantic Motor Oils."
The relevant adjudications in this state are collected by Vice-Chancellor Leaming in Rittenhouse v. Swiecicki,
A reading of the contract in suit does not indicate the slightest suggestion of a contemplated alternative agreement.
Finally, it is urged that the court of chancery had no jurisdiction since there was an adequate remedy at law.Feigenspan v. Nizolek,
Vice-Chancellor Henry C. Pitney said: "The covenant here in question is not an uncommon one. Such covenants have been used in England for more than half a century and are in common use in this country, and the question of their enforcement in this court is an important one, and should be considered on its intrinsic merits. * * *
"Coming to our own state we have the case of ManhattanManufacturing Co. v. Stockyard Co.,
The test of the adequacy of the legal remedy the vice-chancellor determined from the following elements:
"First, the difficulty of ascertaining and proving in an action at law the amount of beer which the defendant has sold.
"Second, the profit which the complainant would have made on an equal amount of beer. On this item the difficulty rests in distributing the items of cost, consisting of the interest of the costs of the plant, the wear and tear of it, the cost of administration, the actual cost of material and manufacture.
"In the third place is the consideration of the multiplicity of suits necessary and proper to give the complainant proper satisfaction.
"In the fourth place is the uncertainty of the pecuniary responsibility of the defendant."
The facts in this case bear a complete analogy. There will be just as much difficulty in determining the amount of gasoline purchased from the competitor and the same difficulty in determining the manufacturer's profit. The likelihood of the multiplicity of suits is just as great, and so far as appears there is just as much uncertainty respecting the pecuniary responsibility of the defendants.
The other point strenuously insisted upon by the defendants was that the complainant had an adequate remedy at law, and that therefore an injunction would not lie negatively to enforce the covenant made by the defendants with the complainant, and they relied upon the case of Sperry Hutchinson Co. v. Vine Bros.,
The decree appealed from will be affirmed.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, CAMPBELL, LLOYD, CASE, BODINE, DALY, DONGES, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, WELLS, JJ. 14.
For reversal — None.