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Kurtz v. Oremland

Decided: June 25, 1954.

JOSEPH KURTZ AND DAVID BUSCH, PLAINTIFFS,
v.
BENJAMIN OREMLAND, PEARL OREMLAND, DAVID LEWIS AND ALBERT M. GREENFIELD & CO., ETC., DEFENDANTS. JOSEPH KURTZ AND DAVID BUSCH, PLAINTIFFS, V. DUNN'S ENGLISH LEATHER SHOP, INC., A CORPORATION OF NEW JERSEY, AND LOUIS W. DUNN AND JESSIE R. DUNN AND ALBERT M. GREENFIELD & CO., A CORPORATION OF NEW JERSEY, JOINTLY AND SEVERALLY, DEFENDANTS



Haneman, J.s.c.

Haneman

This matter concerns (1) a motion to strike certain testimony provisionally admitted at the time of trial, and (2) a motion made by the defendants for judgment at the close of the evidence offered by the plaintiffs under R.R. 4:51.

There are two suits here involved, one commenced in the Atlantic County Court and the second in the Superior Court, Chancery Division. The defendants are different in both suits, with the exception of A. M. Greenfield & Co., which is a defendant in both actions. The two actions were consolidated for the purpose of trial, a trial by jury being expressly waived. The relief demanded by these actions were both for malicious interference with contract and for a breach of contract. The alleged facts in the consolidated actions, briefly stated, are as follows:

1. On June 28, 1950 the plaintiffs entered into a contract with Dunn's English Leather Shop, Inc., hereinafter referred to as Dunn's, for the purchase of all of the fixtures and good will of a retail leather business operated by the said Dunn's at 1535 Boardwalk, Atlantic City, New Jersey. The said agreement contained the following provision:

"7. The seller agrees to transfer and assign to the buyers the lease to the said premises and all rights therein, said lease being dated April 4, 1950, made by Stanley Company of America and Dunn's English Leather Shop, Inc., a corporation of New Jersey; said transfer to take place at the time of final settlement on July 17, 1950. The aforesaid lease of April 4, 1950 provides that any assignment of said lease shall require the written approval of the lessor, the Stanley Company of America, a Delaware Corporation. * * * If approval of lessor cannot be obtained, this agreement to be void and deposit refunded."

2. The defendant Albert M. Greenfield & Co., hereinafter referred to as Greenfield, was the agent of both Dunn's in connection with the sale, and the agent of Stanley Company of America, hereinafter referred to as Stanley, as owner and lessor of premises at 1535 Boardwalk.

3. Subsequent to the date of the plaintiffs' agreement with the said Dunn's, defendants David Lewis and Pearl Oremland entered into a conspiracy to prevent the plaintiffs from

obtaining the approval of the lessor, as required by the agreement, and to obtain such approval for said David Lewis and Pearl Oremland, to the detriment and damage of said plaintiffs. The said Greenfield, as a part of said alleged conspiracy, then obtained an agreement for the purchase by Lewis and Oremland from Dunn's of the identical personalty theretofore covered by the first above referred to agreement with plaintiffs. This agreement with Lewis and Oremland contained a provision that it was subject to plaintiffs' agreement, and a provision similar to that quoted from plaintiffs' agreement providing for a transfer of Dunn's lease with the Stanley Company. For obtaining the Lewis and Oremland agreement, Greenfield was to receive a larger commission from them, and the Dunn's were to be free from paying the entire brokerage commission.

4. The plaintiffs were advised to transmit their information concerning their qualifications as an assignee of said lease to Greenfield as agent for the Stanley Company, and they did so. In furtherance of said conspiracy between Greenfield and Lewis and Oremland, the former, having thus obtained information from the plaintiffs, proceeded further by contacting the Philadelphia office of the Stanley Company and furnishing to it false and misleading information as to both the plaintiffs and the said Lewis and Oremland. This conduct on the part of the defendant Greenfield was requested, furthered and procured by the said Lewis and Oremland. With regard to the plaintiffs, the Greenfield defendant furnished the Stanley Company with information designed to deprecate and belittle the plaintiffs' financial standing, business experience, integrity, and the like, with the intent that the Stanley Company would disapprove an assignment to plaintiffs but would approve an assignment to said Lewis and Oremland. This conduct on the part of Greenfield and Lewis and Oremland was a malicious and wanton interference with the contract and the lawful business and occupation of the plaintiffs.

5. As a result of all of the foregoing, the plaintiffs were prevented from obtaining the stipulated approval of the

assignment of the lease and therefore lost their bargain to purchase the fixtures, good will and business of the said Dunn's.

The issues involved are stated in the pretrial order, as follows:

"The plaintiffs generally allege that the agreement was not carried out although the plaintiffs were at all times ready, willing and able to do so and tender performance. Plaintiffs allege that all of the defendants conspired together to prevent the performance of said contract by preventing the approval of an assignment of lease covering the premises to the plaintiffs, and that the defendants succeeded in carrying out this conspiracy, although otherwise such approval would have been granted and the plaintiffs would have received the benefit of their bargain and the contract would have been carried out."

The relief sought, as stated in the pretrial order, was as follows:

"Plaintiffs demand the following relief in action commenced in Atlantic County Court as against Dunn's English Leather Shop, Inc., Louis W. Dunn, Jessie R. Dunn, and Albert M. Greenfield & Co., compensatory damages as against said defendants under the various counts of the complaint, being one through six, and punitive damages as against all of said defendants as set forth in Count 7."

Plaintiffs demand the following relief in action commenced in Chancery Division of Superior Court as against defendants Benjamin Oremland, Pearl Oremland, David Lewis, and Albert M. Greenfield & Co., (1) as against Benjamin Oremland, Pearl Oremland and David Lewis, judgment, one, directing them to transfer and cause to be transferred to the plaintiffs the business and all its assets, (2) an accounting for conduct of said business since the same has been operated by said defendant, or in the alternative if the said defendants are unable to transfer said business and its assets to the plaintiffs, then they seek compensatory damages to extent of value of said business and its assets and accounting above set forth. Plaintiffs seek as well against all of the defendants to recover punitive damages and insofar as Albert M. Greenfield & Co. are concerned, similar compensatory damages to that above set forth as against the other defendants."

We have here an action which sounds in both contract and tort. Fundamentally, however, both actions arise out of the same alleged state of facts.

The testimony which the defendants move to have stricken concerns itself with the following: (1) testimony of the profits made by Dunn's during the period of its operation of the business here in question, as a basis for computing the damage sustained by the plaintiffs; (2) testimony of the value of the good will of Dunn's computed upon the profits made by Dunn's in its operation of the business as a basis for computing the damage sustained by the plaintiffs; (3) testimony of the rental value of the premises here involved as a basis for computing the damage sustained by the plaintiffs; (4) testimony of the actual qualifications of the plaintiffs for the purpose of the approval of the assignment of the lease by the landlord; (5) testimony of the qualifications given by the plaintiffs to Greenfield for transmission to the landlord for consideration on the application for approval of the assignment of the lease.

The first two objected to portions of the testimony are so inter-related and similar that they may be considered together. It is academic that any compensatory damages to which the plaintiffs might be entitled must be such as would arise naturally as a result of the fault of the defendants. In the breach of a contract said damages, to be recoverable, must be such as may be fairly and reasonably supposed to have been in the contemplation of the parties to the contract at the time it was made and which were the probable result of the breach. Such damages must as well be reasonably certain and definite consequences of the breach, as distinguished from mere quantitative uncertainty. It has been held that in the breach of a contract to lease, the deprivation of prospective profits was not the measure of the damages of the plaintiff, and especially where the plaintiff intended to establish a new business or venture in the premises involved. In that connection, anticipated profits are so contingent, remote, speculative and ...


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