Sinkoff Beverage Co. v. Jos. Schlitz Brewing Co.
| Citation | 3 U.C.C.Rep. 733,51 Misc.2d 446,273 N.Y.S.2d 364 |
| Parties | , 3 UCC Rep.Serv. 733 SINKOFF BEVERAGE CO., Inc., Plaintiff, v. JOS. SCHLITZ BREWING COMPANY, Defendant. |
| Decision Date | 31 August 1966 |
| Court | United States State Supreme Court (New York) |
Plaintiff Sinkoff Beverage Co., Inc., moves for the preliminary enjoining of defendant, Jos. Schlitz Brewing Company, from the sale of its products to other than plaintiff in Suffolk County and that continued exclusive sale to it, all pending the determination of its action for a permanent injunction.
In 1960 the parties contracted in writing regarding plaintiff's wholesale purchase of beer from defendant. The agreement specifically provided that it might be terminated at any time without cause or notice by either party. No exclusive rights were granted, but Sinkoff is nevertheless claiming the existence of an 'understanding' making it defendant's exclusive Suffolk County distributor from the time of the 1960 agreement to date. As a practical matter, for these past six years plaintiff has actually been Schlitz' exclusive distributor in Suffolk County. However, on June 8, 1966, Schlitz notified Sinkoff that it was discontinuing its sales and deliveries to Sinkoff, in ten days.
Plaintiff devotes considerable of its facilities just to the handling of the business the result of six years of exclusive distribution of defendant's products. It claims the privilege, nowhere to be found in the agreement with Schlitz, of a year's notice of termination of the relationship. First, the diminution of its gross sales and net profit is alleged to be serious enough to raise a question of its ability to continue in business altogether. Then too, Sinkoff believes itself entitled to more than the ten days' notice of termination it received based upon the continuing, exclusive-in-fact relationship. Plaintiff argues that reasonable notice is required in these circumstances, and that a reasonable period would be one year.
Schlitz responds not only by pointing to the terms of the 1960 agreement but also by showing that it had expressed dissatisfaction with Sinkoff's wholesaling of its product in November, 1965, and several more times until it finally terminated the relationship. Furthermore, defendant denies the existence of any parol understanding or arrangement between the parties. In addition, defendant notes that the contract refutes any such possibility as either emanating from it or available at all other than in writing.
As to the extra-contractual, verbal franchise Sinkoff relies upon we find ourselves, and even more particularly...
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