Rules of Civil Procedure, 28 U.S.C., on the general ground that the complaint fails to state a claim upon which relief can be granted. Specifically, the defendant's arguments are based on the following points:
(1) The covenant here involved being in reasonable restraint of trade is not therefore violative of the anti-trust acts of Congress.
(2) The action is barred by principles of res adjudicata.
(3) Plaintiff is otherwise estopped from maintaining the action by reason (a) unclean hands, (b) he is in pari delicto, (c) laches and (d) plaintiff was not damaged.
(4) Plaintiff's cause is barred by the statute of limitations.
(5) No monopoly is involved.
(6) The complaint sets forth no cause of action.
Plaintiff countered with his own motion for summary judgment arguing that the contract herein involved is illegal under the anti-trust laws, that the State court proceedings in no wise preclude this court from the exercise of its jurisdiction and that this court has the power to enjoin the State court proceedings.
Both motions were argued upon voluminous affidavits, briefs and reply briefs filed by the parties. There seems to be no doubt that the controversy is disposable under the motions for summary judgment. For the most part there are no material issues of fact. Where conflicts seems to appear analysis discloses that either they were determined by the New Jersey courts or are of so little materiality or substance as to make further hearings upon them superfluous. Indeed, the record reveals rather clearly that the problem here is essentially one of applying legal standards to circumstances adequately before the court.
It appears that the plaintiff is a resident of New Jersey and that defendant is a corporation of the State of Delaware, authorized to do business in New Jersey. From the age of 14 years plaintiff has been engaged in the fur dressing and dyeing industry. He is a grandson of Adolph Hollander, a founder of the defendant company, and his uncles, Ben, Albert and the late Michael Hollander, were the principal parties in interest in it at the time of the contractual relationship which is the subject of this suit. From 1921 to 1939 he was self-employed in the industry, engaged either individually or through corporations in which he had a proprietary interest and achieved a high standing in it as a skilled and talented dyer of various furs. In 1939 the corporation in which he and his brother were -co-owners failed and he sought employment in the defendant company by way of a proposal couched in the following language:
'Newark, N.J., November 2, 1939
'Mr. Michael Hollander, 'c/o A. Hollander & Son, Inc., 'newark, N.J. 'Dear Sir:
'On Monday of this week I suggested to Al. Feldman that your company reopen the Long Branch plant. The conversation only covered the subject in a general way. Feldman called me on the telephone later in the day, and mentioned, that the suggestion I made 'in principle was acceptable.' It was decided that I submit a brief written outline of the proposal directly to you. 'Purpose
'Under this proposal the Long Branch plant, would be devoted exclusively, to the dressing and dyeing of rabbitskins seal. Specialization has its advantages from both a technical and economical point of view. Sponsored by A.H. & S. this venture, with a product of substantial merit, would I am sure within a comparatively short space of time reach a commanding position in the trade. 'Product
'The most important element in making this proposal profitable is, of course, the product. Today we are producing a seal-dyed rabbit that would meet every requirement you would demand. It is also important to know that the element of risk has, from a producing point of view, been almost entirely eliminated. This refers to damage allowances. I could go into a lengthy discussion on this subject, and would be very pleased to if you so request. It is my suggestion that 'two brands' should be established, one brand to provide for the volume business, and volume business is essential, and the other brand to provide for the so called better skin or buck. No attempt should be made to regulate the quality of the merchandise. The differential in price would do all the regulating we would require. After all our job is to do the dressing and dyeing and avoid all theories of merchandising. * * *
'The volume brand should be able to command a price of 17 cents for dressing and dyeing. Under your sponsorship the better brand could be figured from 23 cents to 25 cents.
'This is without question a very important item and should be placed on a very strict budget. * * *
'Estimating profits is always hazardous. From our own experience three million skins a year is not too much to expect. It is a conservative estimate. Proceeding on this basis the following will give a fairly accurate idea of what can be anticipated:
* Average Selling price 17.5
** Average Direct Cost 12.0
Gross Profit per skin 5.5
Gross Profit-three million 165,000.00
Indirect Charges $ 60,000.00
Reserve for Bad Debts $ 5,250.00
Reserve for allowances $ 5,250.00
Total Deductions... 70,500.00
"Net Profit $ 94,500.00
* "The average selling price of 17.5 cents is conservative. Under your
sponsorship, it should be 10% higher.
** "This cost includes every conceivable direct charge, and is based on a
labor situation similar to our present experience, although I feel labor
would be somewhat cheaper in Long Branch than in Newark.
"*** No provision was made here, for depreciation. Our own experience with
losses due to bad debts has been negligible, less than the amount provided
© 1992-2004 VersusLaw Inc.