Mausert v. Christian Feigenspan

• Decision Date: 18 May 1906
• Citation: 63 A. 610,68 N.J.E. 671
• Parties: MAUSERT v. CHRISTIAN FEIGENSPAN.
• Court: New Jersey Supreme Court

63 A. 610

68 N.J.E. 671

MAUSERT

v. CHRISTIAN FEIGENSPAN.

Court of Errors and Appeals of New Jersey.

May 18, 1906.

Appeal from Court of Chancery.

Suit by George A. Mausert against Christian Feigenspan, a corporation. From a decree in favor of defendant, complainant appeals. Affirmed.

Riker & Riker, for appellant. Scott German and Francis Child, for respondent.

GUMMERE, C. J. By a formal agreement under seal entered into by the parties to this litigation on May 20, 1902, the respondent (a brewing company) contracted to lease to the appellant certain premises in the city of Newark, and to expend the sum of $2,500—and $1,000 more, if necessary— in fitting them up for use as a beer saloon by him. He agreed on his part, among other things, to use and sell only the goods manufactured and sold by the respondent company, or imported from outside the United States; and also to give to it a chattel mortgage upon the goods and fixtures contained in the saloon, for such as the respondent might invest in the premises, or loan or advance to him. The fitting up of the premises in the manner provided by the agreement having been completed in the latter part of September, the appellant entered into possession, although no lease had been executed by the respondent. At the same time he gave to the respondent a chattel mortgage upon the stock and fixtures of the saloon. Some two or three months later a lease was tendered him by the respondent, containing a prohibition against his subletting the premises. He declined to accept the lease with this provision in it, for the reason that his contract with the company contained no such prohibition. Some months later he applied to the president of the respondent company to be permitted to sell beer brewed in Milwaukee, Wis. and claims that unrestricted permission to do so was granted to him by that officer. This the respondent denies, but admits in its answer that it granted permission to him to sell from two to four half barrels of that product, upon the express understanding that he would discontinue its sale upon notice from the respondent company to that effect About a year after the appellant took possession of the premises, a dispute having in the meantime arisen between the parties as to his right to sell the Milwaukee beer, and also as to the amount due on the chattel mortgage, the bill in this case was filed. It has a twofold aspect By it the appellant seeks (1) to compel the respondent company to execute and deliver to him a written lease for the premises, in compliance with the provisions of the contract of May 20, 1902, as modified by the alleged agreement made subsequently by the president of the respondent company, with relation to the sale of Milwaukee beer in unrestricted quantities; and (2) to obtain an accounting of the amount due upon the chattel mortgage, and a decree of redemption upon payment of the amount found to be due upon such accounting.

By the decree of the Court of Chancery it was adjudged, first, that the appellant was entitled to have a written lease executed and delivered to him by the respondent, and that the lease should...