Aalfo Co., Inc. v. Kinney

• Decision Date: 04 February 1929
• Docket Number: No. 174.,174.
• Citation: 144 A. 715
• Parties: AALFO CO., Inc. v. KINNEY et al.
• Court: New Jersey Supreme Court

144 A. 715

AALFO CO., Inc.

v. KINNEY et al.

No. 174.

Court of Errors and Appeals of New Jersey.

Feb. 4, 1929.

Appeal from Circuit Court, Essex County.

Action by the Aalfo Company, Incorporated, against Perry D. Kinney and others. From a judment of nonsuit, plaintiff appeals. Reversed and a venire de novo directed.

Joseph Zemel, of Newark, for appellant.

Herrigel, Lindabury & Herrigel, of Newark, for respondents.

GUMMERE, C. J. The plaintiff's action is based upon the following alleged facts set up in the complaint: On the 3d day of April, 1925, plaintiff entered into a five-year contract with the Blake Manufacturing Company, which was engaged in the manufacture of automobile whistles, whereby the latter agreed to sell its entire output to the plaintiff, and the plaintiff agreed to purchase the same at a price specified in the contract; this price, however, being subject to change if, for any unforeseen reason, the cost of materials and labor should increase to such an extent that the whistles could not be manufactured profitably by the Blake Company. After setting out this contract, plaintiff then alleges that the defendants, who were stockholders of the Blake Company, in order to prevent the further performance of the contract by that company, maliciously and unlawfully took possession of its plant, and thereafter put a stop to the further sale of whistles to the plaintiff. A further averment in the complaint is that the defendants, in order to make their unlawul scheme more completely effective, induced another stockholder of the Blake Company to institute proceedings against it in the Court of Chancery for the purpose of having it wound up and its assets distributed, with the result that an order was made restraining the company from further carrying on its business and appointing a receiver who, at the direction of the court, sold the machinery, tools, merchandise, etc., of the Blake Company, thus making it impossible for that company to further perform its contract with the plaintiff. The plaintiff then avers that, by the putting into effect of this unlawful scheme, it has suffered a substantial loss, because of the fact that it was selling these whistles as they were furnished to it at a considerable profit, and claims compensation for such loss. The pith of the answer of the defendants is a denial of the facts first herein set out; and a further denial that the purpose of their act in causing the institution of the suit in chancery was to unlawfully prevent the Blake concern from performing its contract, thus injuring the plaintiff.

The case having in due course come on to be tried, and the facts set up in the complaint having been recited and elaborated upon in the opening of counsel for the plaintiff, the trial court directed a nonsuit on that opening, upon the ground that the contract between the two corporations was unenforceable by reason of its uncertainty as to the price which would be paid for the materials to be furnished, and, further, because the Blake Company was under no obligation to manufacture any whistles whatever, but only to sell to the plaintiff such whistles (if any) as it should manufacture; and that, consequently,...