Mayflower Industries v. Thor Corp., C--1349

• Decision Date: 17 September 1951
• Docket Number: No. C--1349,C--1349
• Parties: MAYFLOWER INDUSTRIES v. THOR CORP. et al.
• Court: New Jersey Superior Court

Page 337

15 N.J.Super. 337

83 A.2d 366

MAYFLOWER INDUSTRIES v. THOR CORP. et al.

No. C--1349.

Superior Court of New Jersey

Chancery Division.

Argued Sept. 15, 1951.

Decided Sept. 17, 1951.

Alfred C. Clapp, Meyer E. Ruback and Joseph A. Weisman, Newark, for plaintiff.

John Milton, Jersey City, for defendant, Teldisco, Inc.

FRANCIS, J.C.C. (temporarily assigned.)

The proofs in affidavit form tend to show that the distributorship contract between Thor Corporation and Teldisco, Inc., was substantially complete when the plaintiff instituted its suit and obtained the restraint against Thor. The terms of the contract had been agreed upon orally. Thor had reduced the terms to a written instrument, and submitted it to Teldisco which signed it. The final signature by Thor was prevented by the restraint.

As a further indication of the fact that the parties regarded their contractual relationship as established, there is some proof in the record indicating that during the short period between the vacation of the restraint by the United States District Court and its reinstatement pending appeal upon the filing of a bond, deliveries of appliances were made by Thor to Teldisco.

The restraint prohibited Thor from 'selling or delivering its products to any distributor (other than the plaintiff) in the territory exclusively reserved to the plaintiff * * *.' Thus, Thor was effectively prevented not only from signing the contract, but it became impossible for the parties to operate under it as well.

The opinion already filed in this cause, 15 N.J.Super. 139, 83 A.2d 246, makes a finding that a factual issue is presented by the proofs submitted as to whether or not the plaintiff, Mayflower, maliciously and without probable cause instituted the original suit against Thor and obtained an injunction on the basis of false affidavits. That Mayflower was aware of an actual or impending contractual relationship between Thor and Teldisco is demonstrated among other things by the complaint which alleges that 'Plaintiff is reliably informed and verily believes, and therefore charges the fact to be, that the defendant Thor Corporation * * * has entered into a contractual arrangement with the defendant Teldisco, constituting and appointing the latter a distributor of the said products of the Thor Corporation in and for the areas exclusively reserved to the plaintiff * * *.' Although Teldisco was not a party to the injunction, it is fairly inferable that plaintiff intended,...