Louis Stern Sons, Inc. v. Connolly

• Decision Date: 31 December 1923
• Docket Number: No. 49/719.,49/719.
• Citation: 123 A. 153,95 N.J.Eq. 356
• Court: New Jersey Court of Chancery
• Parties: LOUIS STERN SONS, INCORPORATED, a corporation, complainant, v. JOHN CONNOLLY, defendant

123 A. 153

LOUIS STERN SONS, Inc.

v. CONNOLLY.

No. 49/719.

Court of Chancery of New Jersey.

Dec. 31, 1923.

Suit by Louis Stern Sons, Inc., against John Connolly. Decree for complainant advised.

Lichtenstein & Lichtenstein, of Hoboken, for complainant.

John J. Fallon, of Hoboken, for defendant.

LEWIS, V. C. The bill in this case is filed to cancel or reform the following instrument:

"Kearny, N. J., Dec. 6, 1919. "I, the undersigned, John Connolly, of Hoboken, N. J., hereby agree to buy, and Louis Stern Sons, Inc., of Kearny, N. J., agree to sell about twenty-five thousand (25,000) empty barrels single and double heads soft and hard wood at seventy-five cents ($.75) each ex Louis Stern Sons, Inc., Kearny, N. J., plant.

"It is further agreed that the delivery will be completed April 1st, 1920.

"It is further agreed that Louis Stern Sons. Inc., will not sell barrels whose capacity is between forty-five (45) and fifty-five (55) gallons to any cooperage concern within the term of this contract.

"Receipt of two thousand dollars ($2,000) is hereby acknowledged as deposit on the fulfillment of this contract and to be deducted at the expiration of same. Settlement to be made for each week's delivery.

"John J. Connolly. "Louis Stern Sons, Inc.,

"Edward Stern, Secretary."

There is no dispute but that, prior to the, signing of this agreement, the parties had entered into a contract for the purchase and sale of certain barrels of the complainant. The contention of the complainant is that this instrument does not accurately set forth the terms of that contract. The defendant, on the other hand, insists that the writing is in accord with the verbal terms agreed upon.

It appears that complainant conducts its business of rendering fats, etc., at or near Kearny, N. J. Material is sent in to the plant in barrels, and in the course of the complainant's business some of the barrels are returned, or otherwise disposed of, but a large number, from time to time, accumulate. It was this accumulation that led to the making of the agreement in question. It was estimated that the number of barrels which had accumulated at complainant's plant at the time the agreement was made, less those that might be used in the regular course of its business or be defective and incapable of use, plus additional accumulations during the four months' period which the contract covered, would amount to "about twenty-five thousand (25,000) empty barrels * * * ex Louis Stern Sons, Inc., Kearny, N. J., plant."

As a matter of fact, only about 15,000 barrels were delivered under the contract. Connolly thereupon brought an action at law against the Stern corporation, alleging damage because of the failure of the Stern corporation to deliver 10,000 more barrels; and claiming that he was entitled to 25,000 barrels under the terms of the contract. Thereupon this bill was filed to restrain the suit at law and to cancel or reform the contract referred to; complainant conceding that in the law court a strict construction of the provisions of the contract would hold it obligated to deliver the 25,000 barrels, as contended by Connolly, and averring that the real intent of the agreement between the parties was that the number of barrels mentioned in the writing was only an estimate, and that it was never at any time intended that barrels should be delivered except from the accumulation resulting from the complainant's business, and that it was never intended that it should go outside to obtain barrels for the purpose of supplying them to Connolly.

Connolly, however, contends that complainant should be held to a strict performance of the contract, and that he is entitled to receive 25,000 barrels, with the allowance of some slight deviation because of the word "about," or else should be paid damages for the nondelivery thereof, and denies that any such intent, as claimed by the complainant, existed.

Where an agreement has been entered into between parties, and the terms thereof are subsequently reduced to writing, and that writing fails to correctly and accurately set forth the terms of the...