On appeal from the former Supreme Court, Essex County Circuit.
For affirmance -- Chief Justice Vanderbilt, and Justices Case, Oliphant, Wachenfeld and Ackerson. For reversal -- Justices Heher and Burling. The opinion of the court was delivered by Oliphant, J.
Plaintiff-appellant appeals from a judgment of nonsuit entered against it in the former Supreme Court, Essex County Circuit.
Plaintiff was a wholesale liquor distributor owning and operating a wine bottling plant in the City of Newark. Defendant owned and operated a winery in the City of Paterson. On March 31, 1942, the parties entered into two contracts. One provided for the sale of plaintiff's wine bottling equipment to defendant, the other, upon which this cause is predicated, was a "requirements" contract which by its terms was to continue in force for sixteen months and to be renewed automatically unless terminated under its provisions.
The complaint was in four counts. By stipulation the causes of action set forth in the third and fourth counts were settled and judgment entered in favor of the plaintiff thereon. This appeal is from a judgment entered for the defendant on the first and second counts, which claimed damages for failure of the defendant to fill orders given him by plaintiff pursuant to the contract sued on. The first count was for damages for loss of profits on orders given between May 14, 1942, and May 14, 1943, and not filled, the second count was to recover anticipated profits on orders plaintiff claims to have given defendant between July 30, 1943, and July 31, 1944. The cause was tried by the court, sitting without a jury.
The pertinent portions of the contract are as follows:
"1. Vischia agrees to sell to Loewus all types of domestic wines; said wines shall be bottled by Vischia under labels designated by Loewus; said wines shall be bottled and furnished to Loewus pursuant to such orders therefor as are received from time to time by Vischia from Loewus. Loewus agrees to place orders with Vischia from time to time for such wine as it may require under labels bearing brand or trade names which are its exclusive property.
"3. It is agreed that the provisions of the preceding paragraphs shall apply to the brand names 'Sunlight' and 'Ramona' now being used by Loewus and to such other brand names as are used on individual orders of 500 cases or more received by Vischia from Loewus. It is further agreed that in so far as other brand names applied to wine which is not ordered in such quantities are concerned, and in so
far as wine bearing the private label of any particular retailer is concerned, Vischia shall bottle and furnish the same to Loewus pursuant to this agreement, provided that in such event Vischia may impose the following additional charge above the cost fixed in paragraph 2, etc.
"5. Vischia agrees to maintain at all times adequate equipment, staff and force of employees to meet the requirements of Loewus and guarantees (except for matters beyond his control) that he will fill in proper and sufficient manner all orders received from Loewus within one week after the receipt of the order.
"7. Nothing hereinbefore or hereafter contained shall in any wise restrict the freedom of Loewus to purchase all imported wines, or domestic wines bottled by others under labels which are not the exclusive property of Loewus by ownership or lease.
"8. It is agreed that in the event Vischia fails for any reason whatever to fill an order submitted by Loewus within seven days after the receipt thereof, Loewus may proceed without restriction to place ...