G. Loewus & Co. Inc. v. Vischia.
| Decision Date | 18 April 1949 |
| Docket Number | No. A-255.,A-255. |
| Citation | 65 A.2d 604 |
| Parties | G. LOEWUS & CO., Inc. v. VISCHIA. |
| Court | New Jersey Supreme Court |
OPINION TEXT STARTS HERE
Appeal from former Supreme Court.
Action by G. Loewus & Co., Inc., a corporation of New Jersey, against Albert Vischia, individually and trading as Sonoma Vineyards Winery and as Reinco, for failure of defendant to fill orders given him by plaintiff pursuant to a contract. From a judgment for defendant, the plaintiff appeals.
Judgment affirmed.
David Stoffer and Stoffer & Jacobs, all of Newark (Joseph M. Jacobs, of Newark, on the brief), for appellant.
Edward R. McGlynn and McGlynn, Weintraub & Stein, all of Newark, for respondent.
Plaintiff-appellant appeals from a judgment of non-suit entered against it in the former Supreme Court, Essex County Circuit.
Plaintiff was a wholesale liquor distributor owning and operating a wine bottling plant in the City of Newark. Defendant owned and operated a winery in the City of Paterson. On March 31, 1942 the parties entered into two contracts. One provided for the sale of plaintiff's wine bottling equipment to defendant, the other, upon which this cause is predicated, was a ‘requirements' contract which by its terms was to continue in force for sixteen months and to be renewed automatically unless terminated under its provisions.
The complaint was in four counts. By stipulation the causes of action set forth in the third and fourth counts were settled and judgment entered in favor of the plaintiff thereon. This appeal is from a judgment entered for the defendant on the first and second counts, which claimed damages for failure of the defendant to fill orders given him by plaintiff pursuant to the contract sued on. The first count was for damages for loss of profits on orders given between May 14, 1942 and May 14, 1943 and not filled, the second count was to recover anticipated profits on orders plaintiff claims to have given defendant between July 30, 1943 and July 31, 1944. The cause was tried by the court, sitting without a jury.
The pertinent portions of the contract are as follows:
‘1. Vischia agrees to sell to Loewus all types of domestic wines; said wines shall be bottled by Vischia under labels designated by Loewus; said wines shall be bottled and furnished to Loewus pursuant to such orders therefor as are received from time to time by Vischia from Loewus. Loewus agrees to place orders with Vischia from time to time for such wine as it may require under labels bearing brand or trade names which are its exclusive property.
‘3. It is agreed that the provisions of the preceding paragraphs shall apply to the brand names ‘Sunlight’ and ‘Ramona’ now being used by Loewus and to such other brand names as are used on individual orders of 500 cases or more received by Vischia from Loewus. It is further agreed that in so far as other brand names applied to wine which is not ordered in such quantities are concerned, and in so far as wine bearing the private label of any particular retailer is concerned, Vischia shall bottle and furnish the same to Loewus pursuant to this agreement, provided that in such event Vischia may impose the following additional charge above the cost fixed in paragraph 2, etc.
‘5. Vischia agrees to maintain at all times adequate equipment, staff and force of employees to meet the requirements of Loewus and guarantees (except for matters beyond his control) that he will fill in proper and sufficient manner all orders received from Loewus within one week after the receipt of the order.
‘7. Nothing hereinbefore or hereafter contained shall in any wise restrict the freedom of Loewus to purchase all imported wines, or domestic wines bottled by others under labels which are not the exclusive property of Loewus by ownership or lease.
Judge William A. Smith, in finding for the defendant, held the contract did not require or bind plaintiff to purchase from defendant any more wine than it wanted or desired, but even if it did the amount which defendant might be required to furnish was too uncertain to render the contract definite enough to be enforceable and that it was not enforceable as to the orders given but not filled.
The court below found as a fact that defendant was unable to reasonably estimate what supply plaintiff would require of him and that if plaintiff was obligated to give defendant all his orders the contemplated business was of such a character that, under the contract for the requirements of the business, neither party was in a position to make...
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...the court should adopt the one which makes the contract valid as opposed to one reaching a contrary result. G. Loewus & Co., Inc., v. Vischia, 2 N.J. 54, 58, 65 A.2d 604 (1949). The plaintiffs concede that there is, on the face of the agreements, no written provision requiring the plaintiff......
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