Butterick Pub. Co. v. Frederick Loeser & Co.

• Citation: 133 N.E. 361,232 N.Y. 86
• Court: New York Court of Appeals
• Decision Date: 22 November 1921
• Parties: BUTTERICK PUB. CO. v. FREDERICK LOESER & CO., Inc.

232 N.Y. 86

133 N.E. 361

BUTTERICK PUB. CO.

v.FREDERICK LOESER & CO., Inc.

Court of Appeals of New York.

Nov. 22, 1921.

Action by the Butterick Publishing Company against Frederick Loeser & Company, Incorporated. From a unanimous order of the Appellate Division (196 App. Div. 1,187 N. Y. Supp. 500), reversing an order of the Special Term, enjoining the defendant pendente lite from selling any make of patterns other than those of the plaintiff company, plaintiff appeals by permission. 196 App. Div. 967,188 N. Y. Supp. 913.

Certified questions answered, and order reversed.

Appeal from Supreme Court, Appellate Division, First Department.

James B. Sheehan, of New York City, for appellant.

Merton E. Lewis, of Rochester, for respondent.

HISCOCK, C. J.

This action was brought to restrain defendant from selling patterns for ladies' and children's garments made by a competitor of plaintiff in violation, as alleged, of the terms of a contract made between the parties. The questions which have been certified to us have arisen on an appeal from an order by the Appellate Division vacating an injunction granted by the Special Term, restraining defendant from thus selling the competitor's patterns during the pendency of this action, and the first of these involves the sufficiency of the complaint. In examining that pleading in response to this question, we shall summarize its voluminous and rather prolix allegations by stating as briefly as possible the substance of those which are material in this controversy.

By its allegations it appears that the plaintiff was engaged in the manufacture and sale of paper patterns for women's and children's garments, and as the result of the long-continued conduct of this business had established a high reputation. It largely marketed its patterns under contracts with individuals and corporations called special agents for the sale thereof, and describing in considerable detail the duties and obligations of the plaintiff and the so-called special agents. The defendant was the proprietor of a large dry goods and department store in the city of Brooklyn, and because of its large business and reputation was an especially desirable agency to be used by plaintiff in marketing its wares. Under these circumstances January 20, 1919, a contract was made between the parties covering the subject of the purchase and sale by defendant of plaintiff's patterns and which we shall briefly recapitulate, again omitting provisions which are formal or immaterial in this discussion. The plaintiff, as party of the first part, agreed that defendant, as party of the second part, should have ‘the right to act as special agent for the sale of its patterns in their store in Brooklyn, state of New York;’ to furnish to defendant patterns at certain prices and advertising matter, and to permit the exchange of patterns which had been purchased for new patterns. The defendant, as party of the second part, agreed ‘to purchase from the party of the first part and to keep on hand for sale at all times during the period this agreement continues in force patterns to the amount of $2,000 at 50 per cent. of retail prices, * * * to purchase for free distribution fashion sheets from the party of the first part to a number not less than 180,000 sheets of Butterick Fashions per annum, all of which were to be paid for as therein specified; to keep patterns in a certain prominent place in its store and to give proper attention to the sale thereof; ‘to conserve the best interests of the party of the first part at all times; not to sell or permit to be sold on the premises of the party of the second part during the term of this contract any other make of patterns.’ Then followed a clause which more than any other has become the immediate cause of dispute. It provided:

‘The agreement shall remain in force for the term of two years from date and from year to year thereafter until it shall be terminated in the following manner: At any time within 30 days after the expiration of any contract term as herein specified either party may give the other a notice, in writing, of a desire to terminate the agreement, and upon the expiration of 6 months following such notice, or within 1 week-either before or after-said expiration, all patterns held by the party of the second part shall be returned to the party of the first part at its general office in New York; and if all the provisions of this agreement shall have been performed by the party of the second part, the party of the first part shall pay to said party of the second part in current funds, within 30 days of the time of delivery to it of said patterns, three-fourths of the amount charged for the same, but patterns returned, either for exchange or for redemption at the termination of the agreement, must have been procured direct from the party of the first part, and not through any other party.’

As then is further alleged in the complaint, the parties duly entered upon and continued in the performance of this contract, doing a business which amounted to many thousands of dollars each year, until January 10, 1921, when the defendant refused to comply with the terms of its contract, and not only failed to make the exertions to sell plaintiff's patterns which it had promised but commenced the advertisement and sale in its store of patterns made by a competitor of plaintiff, in violation of the terms of the contract and otherwise violated its agreement; that the result of these violations, if continued, would be an injury in various specified ways which could not be measured by ordinary damages, and entitled the plaintiff to an injunction which it demanded, with other appropriate relief.

[1][2] We have no doubt that this complaint sets forth a good cause of action. It alleges a contract between the parties which by its terms covered the period in dispute, an agreement by the plaintiff to sell certain goods to defendant, and by the latter not only to use due and specified methods for selling such goods, but to refrain from selling similar goods of another make, and, finally, a breach by the defendant of this latter agreement under circumstances which would render pecuniary damages an inadequate method of relief for the injury which plaintiff was suffering by reason of such violation. There is no suggestion that the contract...