Salinger v. Salinger

• Decision Date: 28 July 1899
• Citation: 45 A. 558,69 N.H. 589
• Parties: SALINGER et al. v. SALINGER.
• Court: New Hampshire Supreme Court

45 A. 558

69 N.H. 589

SALINGER et al.

v. SALINGER.

Supreme Court of New Hampshire. Strafford.

July 28, 1899.

Action by Rudolph Salinger and another against Isidor Salinger. Judgment was entered against defendant by default, and damages assessed by a commissioner. Motion to set aside the award denied, and case discharged.

Assumpsit to recover for breach of a contract, in writing, not to engage in the dry-goods business in Rochester for the term of five years from April 1, 1890. Facts found by the court: September 10, 1892, the defendant went into the dry-goods business in Rochester in violation of his agreement; immediately engaging in a bitter competition with the plaintiffs, cutting prices, and advertising his opposition to them very extensively, and has ever since continued so to do. The writ is dated August 3, 1897. The defendant was defaulted, and the case sent to a commissioner for the assessment of damages, whose report was filed September 3, 1898. At the September term, 1898, the report was recommitted, with Instructions "to report what, if any, damages were assessed on points to which the defendant took exceptions, and claimed was not a legal basis of damages, and report fully the facts on those points." The commissioner reported as follows: "The defendant having no right to go into business until April 1, 1895, the plaintiffs claimed that then, if defendant remained out of business until that date, their business would have been more firmly established and better known, so that they could have better met the defendant's competition than they were and could do when he went into business on September 10, 1892, and thereby they suffered damages after April 1, 1895, and down to the date of the writ; and, upon the evidence and circumstances appearing in the case, referee found the plaintiffs' claim to be correct, against the objection of the defendant in arguments; and the referee, in computing the damages, assessed them in accordance with plaintiffs' claim, but nothing was allowed for damages since the date of the writ." At the February term, 1895, the defendant requested that the commissioner "be directed to report the evidence and circumstances upon which he based his award in this behalf." There being no claim of any special ground for damages after April 1, 1895, appearing upon the evidence and circumstances not disclosed by the report, the motion was denied, subject to exception. The defendant then moved to set aside the award for error of law in the assessment.

Worcester, Gafney & Snow and John Kivel, for plaintiffs.

Felker & Gunnison and John S. H. Frink, for defendant.

WALLACE, J. Under the contract the plaintiffs were entitled to two things: (1) To have the profits upon such sales as they could make during the term of the contract, without meeting competition by the defendant; (2) to the value of such business as should thus have been established at the termination of the contract. If they have been deprived of any part of either right by the defendant's violation of his agreement, they are to be fully compensated therefor. The facts show a willful and malicious breach of contract, and the case is one where "the law will not nicely attempt to limit the amount of reparation, but will extend the line of relief so as to embrace all the consequences of the wrongdoer's act, although quite remote from the original transaction." Dow v. Electric Co. (N. H.) 41 Atl. 288. During the term of the contract, each day of the defendant's competition constituted a continuing wrong done to the plaintiffs. Their rights were constantly violated, and in such a way that...