Silverstein v. Dohoney

• Decision Date: 13 October 1954
• Docket Number: No. A--534,A--534
• Citation: 32 N.J.Super. 357,108 A.2d 451
• Parties: Nathan SILVERSTEIN and Julian Silverstein, t/a Silco Cigarette Service, Plaintiffs-Appellants, v. George DOHONEY, Defendant-Respondent. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 357

32 N.J.Super. 357

108 A.2d 451

Nathan SILVERSTEIN and Julian Silverstein, t/a Silco Cigarette Service, Plaintiffs-Appellants, v. George DOHONEY, Defendant-Respondent.

No. A--534.

Superior Court of New Jersey Appellate Division.

Argued Sept. 27, 1954.

Decided Oct. 13, 1954.

Maurice C. Brigadier, Jersey City, argued the cause for plaintiffs-appellants (Sol Schulman, Jersey City, attorney; Seymour Margulies, Jersey City, on the brief).

Abraham J. Slurzberg, Jersey City, argued the cause for defendant-respondent (Louis Bolstein, Bayonne, attorney; Maurice A. Cohen, Bayonne, of counsel).

Irving I. Vogelman, Jersey City, argued the cause for defendants-respondents in companion case, Silverstein v. Keane, et al., A--544--53 which is encompassed by this opinion.

Before Judges EASTWOOD, GOLDMANN and SCHETTINO.

The opinion of the court was delivered by

SCHETTINO, J.S.C. (temporarily assigned).

Plaintiffs here appeal from a judgment of involuntary dismissal. The action is for damages for breach of contract. The parties executed a writing under date of December 11, 1952, whereby defendant 'leased' to plaintiffs for a term of three years so much space of defendant's premises as was necessary to permit the installation of a 'cigarette vending machine or machines.' It was agreed that for the period of the lease no cigarettes should be sold on the premises except through plaintiff's machines.

The testimony would justify a finding that defendant breached the agreement with plaintiffs. Defendant does not dispute that this is so but contends that an enforceable obligation did not exist by reason of considerations discussed hereafter.

I

The writing recites a conventional consideration of $1 and other good and valuable consideration and on its face there is evidence of payment to defendant of the sum of $40 as a 'bonus,' which payment, according to the testimony, was in fact made. The writing, however, evidences that a further substantial consideration was contemplated in these terms:

'As a further consideration for this letting, the Silco Cigarette Service agrees to pay any and all commissions for sales of cigarettes through the said machines, and the said commissions earned are to be paid directly to the lessor herein every month during the running of this Agreement.'

For a period prior to the execution of the writing, plaintiffs had a machine upon defendant's premises and paid commissions on cigarette sales. Testimony was admitted from which the trier of facts could conclude that, when the writing here involved was executed, it was agreed that the existing rate of commission would apply. Such testimony was excluded by the trial judge in a companion case, and we therefore discuss here the application of the parol evidence rule.

Defendant contends that the writing constitutes the entire agreement of the parties; that its terms may not be augmented by the parol proof just described; and that, if such proof is excluded, the agreement between the parties as integrated in the writing does not constitute a binding contract for want of an expression therein fixing the rate of commissions.

We need not consider whether, if the parol proof as to the rate of commission were inadmissible, the law would import an undertaking to pay at a reasonable rate. That question is not presented because no barrier exists to the mentioned proof. Unless a requirement exists that an agreement be in writing, the parties may bind themselves contractually by writing or oral understanding or by a combination of both. The parol evidence rule inhibits additions to or variations from a writing intended to constitute the entire agreement and as well contradictions of so much of an agreement as may have been reduced to written form. But it is clear that parol evidence as to the rate of commission does not offend these principles. The writing on its face evidences that a commission was intended. Proof of the rate does not add to the obligations of the parties under the writing, but rather expounds the obligation which the writing recognizes to be a part of the agreement. Nor, of course, does the oral testimony contradict or vary any written term. Perhaps to express it another way, the writing does not purport to be the entire understanding and, on its face, it is apparent that something was left out, and hence the admission of the testimony squares with the rule as stated in Ross v. Orr, 3 N.J. 277, 282, 69 A.2d 730, 732, (1949):

'* * * it is equally true that if the written contract purports to contain the whole agreement, and it is not apparent from the writing itself that something is left out to be supplied by extrinsic evidence, parol evidence to vary or add to its terms is not admissible. Naumberg v. Young, 44 N.J.L. 331 (Sup.Ct.1882); Cohen v. Cohn, 102 N.J.Eq. 245, 140 A. 319 (E. & A. 1928); R.E. Brooks Co. v. Storr, 111 N.J.L. 316, 168 A. 382 (E. & A. 1933); Downs v. Jersey Central Power & Light Co., 117 N.J.Eq. 138, 174 A. 887 (E. & A. 1934); Pelinger v. Bernfeld, 133 N.J.L. 31, 42 A.2d 202 (E. & A. 1945); Zone Co. v. Service Transportation Co., Inc. 137 N.J.L. 112, 57 A.2d 562 (Sup.Ct.1948).'

Defendant questions the sufficiency of the testimony to support a finding that, when the writing was executed, the parties in fact agreed that the prior rate was to continue. This contention rests upon one possible interpretation of the evidence, but defendant's view need not be accepted by the trier of the facts, and of course plaintiffs are entitled to the most favorable view of the testimony upon a motion for judgment. McKinney v. Public Service, 4 N.J. 229, 243, 72 A.2d 326 (1950); O'Donnell v. Asplundh Tree Expert Co., 13 N.J. 319, 99 A.2d 577 (1953). The testimony, particularly in the light of the prior course of dealings between the parties, would amply support a finding against defendant on this issue.

Defendant further construes the testimony to be that plaintiffs reserved the right to vary the rate of commission upon an arbitrary basis, devoid of standard. We do not read the record that way, but rather we gather that different rates were fixed by agreement in each particular transaction with an operator of an establishment, depending upon the facts in each contractual setting. Hence, we need not, and should not, consider the legal effect of a reservation of a character which defendant postulates.

II

The agreement provides:

'The term of this Agreement is for three years from the date hereof, and thereafter for a like period until this Agreement is cancelled by either party by notice in writing given to the other thirty (30) days before the annual termination date.

'I/we also agree not to sell or allow to be sold any cigarettes in any other manner on the premises, either directly or indirectly, for the period of this lease, excepting through machines owned and operated by the Silco Cigarette Service, and I/we do further agree that the said machines above referred to are not and shall not be subject to any liens or mortgages covering the premises, and that the Said Silco Cigarette Service may remove the machine or machines from the above mentioned premises at any time, day or night, without obligation or liability.' (Italics added.)

Defendant urges that the italicized portion entitles plaintif...