130 N.Y.S. 37 | N.Y. App. Div. | 1911
Lead Opinion
This is an appeal by- defendant from a judgment for one year’s installment due to' plaintiff, as it-is claimed,-under an agreement for the payment of royalties.
Prior to the year 1901 plaintiff was the agent in this country for the firm of Zoeppritz, Óantz & Ziegler, corset manufacturers, of Oannstatt, Germany. He had the exclusive control of the sale of their products in this country, and owned certain of the trade marks under which their-goods were sold. His sole business was selling these goods. He had been engaged in this or a similar business for a number- of years and was well known
’ “ This contract is to be binding upon the parties hereto, their heirs, executors and assigns forever.”
This agreement can be more conveniently quoted, than summarized. It reads as follows:
“Memorandum of Agreement made and entered'into this fifth day of July, 1901, by and between Emil Schweinburg, of the City of New York, hr the State of New York, party of the first part, and Benjamin Altman, doing business under the name of B. Altman & Co. of the City and State of New York, party of the second part.
“In view of the party of the first part waiving all his interests and profits of the business hitherto made by him in the United- States, by reason of his controlling and selling corsets manufactured by Zoeppritz, Cantz <⅛ Ziegler, of Cannstatt, Germany, and .in consideration of the party of the first part having transferred the said control for the United States and Canada to B.- Altman & Co., as per contract executed-this fifth day' of July, 1901, the party of the second part agrees to pay to the party-of the first part, during the term of said contract, and also for the terna to he agreed to at the time of expiration .of contract, an annual royalty of Seven thousand Five hundred ($1,500.00) dollars, payable quarterly, and-in addition to this amount, a commission of ten (10$) per cent, to he paid to the party of the first part on all purchases made by the party of the second part from Zoeppritz, Cantz & Ziegler, of Cannstatt, Germany, exceeding the annual guarantee amount of One hundred and Fifty thousand marks; the exact amount of commission to he calculated on the actual amount ■ remitted tó Zoeppritz, Cantz & Ziegler.
“It is also agreed that whenever the party of the second part should cancel the contract after five years, as stipulated, the annual royalty and commission shall cease.
“ The party of the first part agrees that he will not transfer, sell or assign any of the trade marks or trade names now*381 used or to be used for corsets manufactured by Zoeppritz, Cantz & Ziegler, during the term this contract remains in force, and also in case of a renewal for the use in the United States by any other party or parties except by the party of the second part. The party of the first part gives party of the second part herewith the right to import and sell corsets thus stamped, branded and labeled with .the said marks and manufactured by Zoeppritz, Oantz <⅛ Ziegler for the parties which have hitherto dealt in them, and should these parties not continue to purchase from the party of the second part the said goods, .the. party of the second part has the right to sell the corsets bearing the trade marks or trade names and stamped, branded and labeled to other parties in the United States.
“The party of the second part agrees to uphold the various trade marks and trade names secured for the United States as far as possible, and promises to use the best efforts to increase the sale of corsets stamped, branded and labeled Z. Z. and £Au Coeur ’ by reason of his selling the said goods. '
“ The party of the second part further agrees that all rights for the said trade marks and trade names for use in the United States or Canada, shall revert to party of the first part whenever the contract before mentioned is discontinued.
“ Party of the first part further agrees that he will liquidate ' his present business immediately after this contract goes into effect, and that, during the term of this contract, and during its continuance, if renewed, he will not re-establish himself again in the same business in the United States.
“ This contract to be binding upon the heirs, executors and assigns of both parties.
“ (Signed)
“EMIL SOHWEINBUKG- [l. s.]
“B. ALTMAN & CO. [l. s.]
“ In the presence of
“ MilxoN M. KleiN.”
The plaintiffyhas recovered judgment for $7,500, with interest, representing the royalty due for the year commencing November 1, 1906. The defense to the action is that the
To these instructions no objection or. exception was taken by defendant, and no request for any contrary instruction was made by defendant. Indeed no exception was taken by defendant to any part of the charge and no request made by defendant was refused. It, therefore, stands as the law of the case
There is, however, another reason why the judgment appealed from is right. The contracts already quoted from were evidently drawn with considerable care, and by some one accustomed to the preparation of legal documents. We must assume, therefore, that the words used to express the rights and obligations of the several parties were so used deliberately and with intention. Turning to the tripartite agreement, we find that it is to run for fifteen years, but may be sooner ended by the defendant in two contingencies. First. It might be terminated at the expiration of five -years by the giving of written notice to plaintiff and the German firm one year in advance. Bor the termination of the contract under this clause it was not necessary that any reason should be assigned or should exist, except the will of the defendant, but if thus
In either view, therefore, the judgment was right and should be affirmed, with costs.
Dissenting Opinion
(dissenting):
There is substantially little or no dispute between the parties as to the material facts involved. On the 5th of July, 1901, the plaintiff, who was then, and for some time had been, the sole agent and representative in the United States of a German firm which manufactured corsets, entered into a tripartite agreement in which he was designated as party of the first part, the German firm as parties of the second part, and the defendant as party of the third part, by which the latter acquired the exclusive right to sell, in the United States and Canada, corsets manufactured by such firm. The agreement provided that “ this contract is to take effect on the first day of November, 1901, and is to continue in force for the term of fifteen (15) years, subject to termination, however, at the expiration of five (5) years by the giving of written notice, by registered mail, one (1) year in advance to the said party of the first part, and to the parties of the second part.” Simultaneously with the execution of the contract, the plaintiff and the defendant entered into a contract — copy of which is set out at length in the prevailing opinion — wherein plaintiff was désignated as party of the first part and defendant party of the second part. The .fact is not disputed but what the defendant, within the terms of the contract between the plaintiff, the German firm and himself, gave the notice within the time and manner therein provided that he would, at the -expiration of the five
The right to maintain the action and sustain the' judgment is predicated upon -the proposition that the contract between the plaintiff, the German firm and the defendant was never actually terminated in good faith; that it was a’mere pretended termination entered into for the sole purpose of freeing the-defendant from paying the plaintiff the royalties stipulated-to be paid to him.
I am of the opinion that the defendant’s motives in terminating the contract with the German firm. are of no importance. The contract gave him the absolute legal right to terminate it at the expiration of five years, on giving a notice to that effect afr the time and in the manner therein provided. He gave the notice as provided in the contract; it was thereby terminated, and the plaintiff thereafter was not entitled' to the royalties provided in the contract between himself and the defendant, because under their contract it will be observed there was an express provision that “ It is also agreed that whenever the party of the second part should cancel the contract after five years, as stipulated, the annual royalty and commission shall cease.” The defendant having the legal right to terminate the contract with the German firm, and having exercised such right, it does not lie with the plaintiff to say it was not done in good faith. When one has a legal right to do a thing, his motives in doing it will not be inquired into..
' Not only this, but I think the evidence clearly and conclu- ' sively shows that the defendant in .terminating the contract acted in entire good faith and the finding of the jury to the contrary is against the evidence. It is true another contract, embodying some,-not .all,.of the terms and conditions of the-old contract was entered into by the defendant and the German firm, which went into effect immediately following the termination of the old contract. The correspondence between the defendant and the German firm shows why the new contract
It is suggested, not by counsel, that because the question of defendant’s good faith in'terminating the contract was submitted to the jury — to which no exception was taken and no request for instructions to the contrary made — that thereupon such instruction became the law of the case and defendant is not now in a position to raise the question. A complete answer to this suggestion, as it seems to me, is that at the close of plaintiff’s testimony defendant’s counsel moved for the dismissal of the coinplaint upon various grounds, one of which was that there' was no proof that the notice terminating the contract was given in bad faith. And, again at the close of the whole case, upon similar grounds, the defendant’s counsel-moved for the direction .of a verdict. The motions in each instance were denied and an exception taken. These exceptions cannot be destroyed because an exception was not taken to the charge submitting such question to the jury. Prior to the charge the court had held that defendant’s good faith was a question to be submitted to the jury. It was, therefore, unnecessary to except to the charge on this subject in order to take advantage of the previous exceptions. An exception once taken to a ruling is available without thereafter repeating it to a similar ruling.
Besides, I think at the close of plaintiff’s case the court should have dismissed the complaint, and having failed to do this, then at the conclusion of the testimony should have directed a verdict for the defendant. The defendant not only, as we have seen, had a right to terminate the contract with the ’German firm, but there is absolutely no' evidence which
The tripartite agreement was for a term of fifteen years, but it might be sooner terminated, (1) at the expiration of five years by the defendant’s giving the written notice therein provided; and (2) at any time in case there were a change in the tariff laws of the United States by which the duty should be increased to such an extent that, in the -judgment of this defendant, further importation of corsets would prove unprofitable. The right of the defendant to terminate the contract at the expiration of five years was fully and explicitly recognized by the plaintiff in his contract with the defendant. It was also recognized in the plaintiff’s letter to the Gferman firm in which, referring to the notice served by the defendant, he ' said: ’ “ The communication which you made to me with regard to the notification of termination of B. A. & Oo., surprised me very much for the alleged canse has no legal foundation. The notification of termination would have been- warranted, but since B. A. & Co. have alleged a ground as the reason from which you stand entirely remote ⅜ ¾ % I believe that you rightlyrefusedtheacceptance ⅜ ⅜ ⅜.”
But it is suggested that the cessation of royalty payments under the contract is made dependent not upon the termination of the contract at the expiration of five years, but upon the cancellation of the contract after five years; in other words, the argument is that under the agreement between the plaintiff and defendant, a termination of the contract with the German firm would not terminate plaintiff’s right to the annual -royalty payment, but’ only if the contract were canceled by reason of an' increase of duty after five years. I think the words “ cancel ” and “terminate ” as used in the tripartite agreement are used synonymously. In each instance the words were used to indicate an ending of the contract and there is nothing to suggest a different meaning when both-contracts are read together, and this is the construction which the parties themselves, especially the plaintiff, put upon them. Plaintiff was securingacontractbywhichhewasto.be paid $7,500 a year
I am also of the opinion that the trial court erred in not admitting in evidence defendant’s Exhibit 5a for identification. This was an agreement, dated October 24, 1.903, between the. plaintiff and the successor of the German firm, by which the plaintiff, in consideration.of 9,250 marks paid to him, assigned and transferred to such successor rights which he had rrnder
For the foregoing reasons I am unable to concur in' the prevailing opinion.
I think the judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide event.
INGRAHAM, P. J., concurred.
Judgment and order affirmed, with costs.