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Schlossbach v. Francis-Smith

Decided: April 19, 1949.

HARRY R. SCHLOSSBACH, PLAINTIFF,
v.
WHITTON FRANCIS-SMITH AND ALEXANDER FRANCIS-SMITH, DEFENDANTS



Civil Action. On Final Hearing.

Jayne, J.s.c.

Jayne

This action implicates the equitable enforceability in the existing factual circumstances of an ancillary restrictive covenant embodied in the agreements dated November 19, 1945 (subsequently renewed), by which the plaintiff, a realtor, employed the defendants as sales agents.

Covenants in restraint of trade between employer and employee have not in recent years been unqualifiedly disapproved by our judicial decisions or by considerations of public policy. A copious citation of pertinent authorities will be found in my decision in Silbros, Inc., v. Solomon , 139 N.J. Eq. 528, 52 A.2d 534.

However, such a covenant will not be enforced in equity unless it is manifestly operative in the particular circumstances of its alleged disobedience. Concerning such agreements, as with all written contracts, the ascertainment of the expressed intention of the parties is the prime object of interpretation. Corn Exchange National Bank & Trust Co. v. Taubel , 113 N.J.L. 605, 175 A. 55; Mantell v. International Plastic Harmonica Corp. , 141 N.J. Eq. 379, 55 A.2d 250.

Nor will the covenant be enforced if it has a greater restrictive amplitude than reasonably required to afford a fair protection in favor of the plaintiff. Gordon Supply Co. v. Galuska , 113 N.J. Eq. 353, 166 A. 700; Automobile Club of Southern New Jersey v. Zubrin , 127 N.J. Eq. 202, 12 A.2d 369.

Assuredly enforcement will not be attempted where the defendant has been expressly liberated by the plaintiff from his obligations under the covenant. In the absence of some vested derivative interest in another, a contract may be modified, abrogated, or rescinded by the mutual assent of the contracting parties.

Assuming the legal orthodoxy of those antecedent premises, I have applied them to my consideration of the present case.

I resolve as a conclusion of fact that the plaintiff emancipated the defendant Alexander Francis-Smith from the obligations of his employment contract. The plaintiff was perhaps initially under the influence of some vexation, but despite the lapse of a "cooling off period" he confirmed his determination by his letter of August 20, 1948.

It is said that he did so rashly under the supposition that the defendant Mrs. Francis-Smith, the wife of Alexander, would continue in his employment. The evidence fails adequately to sustain the contention that the plaintiff in discharging Mr. Francis-Smith was actuated by any purposeful deception or premeditated misrepresentation projected in that regard by the defendants.

The employment contracts, although identical in terms, were individual ...


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