On appeal from the District Court of the Essex County Judicial District.
For the plaintiff-respondent, Max Shapiro (Julius Stein, of counsel).
For the defendant-appellant, A. Warren Littman.
Before Justices Donges and Eastwood,
The opinion of the court was delivered by
EASTWOOD, J. Newark Hardware and Plumbing Supply Company engaged in the business of selling wholesale and retail plumbing supplies, stoves, &c., brought suit below against the appellant, Stove Manufacturers Corporation, engaged in a similar business, to recover profits alleged to have been lost as the
result of an alleged misappropriation of twenty-nine stoves or heaters ordered by respondent from Armstrong Stove & Manufacturing Company, a manufacturer of heating stoves, and inadvertently delivered to appellant by Wooleyhan Transport Company, a common carrier, through an error on the part of said carrier's driver. At the close of the testimony, a motion for a nonsuit and the direction of a verdict was made on behalf of appellant and denied. Judgment was entered in favor of the respondent herein in the amount of $190.45, being the amount of alleged profits lost by respondent.
It is undisputed that both appellant and respondent are engaged in similar businesses, having their respective stores on Mulberry Street, in the City of Newark, in proximity to each other, and that the stoves in question were delivered to appellant's store through an error on the part of the trucker. The delivery receipt was signed by an agent of the appellant on October 16th, 1944, although the respondent's name as consignee was clearly stated on said receipt. Suit was filed on the theory that the appellant, charged with knowledge that the stoves were consigned to the respondent, its acceptance and disposal of the same interfered with respondent's legal right to receive the stoves, thereby committed an invasion of respondent's legal right and an unlawful interference with its business, and thus committed an actionable tort. The defense interposed was that the complaint was insufficient in law. Error is assigned to the effect that the court below erred in denying appellant's motion for a nonsuit and a directed verdict and further, that no damages were proven.
Our review of the facts and the law applicable thereto leads us to the conclusion that the respondent's complaint set forth a legally sufficient cause of action. The situation before us has been ably and fully discussed in the well-reasoned opinion of Mr. Justice Heher, speaking for the Court of Errors and Appeals, in Louis Kamm, Inc., v. Flink, 113 N.J.L. 582; 175 A. 62, who stated:
"The case pleaded falls naturally into the classification of an actionable infringement of a property right, i.e., the right to pursue one's business, calling or occupation free from undue interference or molestation. The wrongful act charged was
the malicious interference with appellant's business. Its object and consequent, so the complaint charges, was the deprivation of the business and profit that would otherwise have accrued. Natural justice dictates that a remedy shall be provided for such unjust interposition in one's business. The luring away, by devious, improper and unrighteous ...