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Nitta v. Yamamoto

Decided: August 18, 1954.

S. JOHN NITTA T/A AMERICAN CHICK SEXING ASSOCIATION, PLAINTIFF-APPELLANT,
v.
JOE MITSUO YAMAMOTO, DEFENDANT-RESPONDENT



Schettino, Hetfield III and Cafiero. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).

Schettino

Plaintiff appeals from a judgment of the Chancery Division based upon a determination that plaintiff had engaged in the business of an employment agency without license to do so and his failure to observe the statutory provisions for licensing makes a contract signed in violation thereof unenforceable. The statutory provisions in effect at the time of the making of the alleged contract were R.S. 34:8-1 et seq.; Employment Agencies Act.

Plaintiff's primary purpose was to enforce the covenant of an alleged agreement between the parties dated February 21, 1948 which generally bound defendant not to engage in the business of chick-sexing within the territories where he served under the agreement and not to perform any such services for customers of plaintiff whom defendant served under the agreement.

The issues remaining after argument were: (1) was there a "contract"; (2) is the restrictive covenant contained therein enforceable; and (3) if there is a "contract," is it unenforceable because it is within the purview of R.S. 34:8-1 et seq. and plaintiff failed to comply with the statute? We feel that the last stated issue is dispositive of this appeal and shall therefore consider it first.

Plaintiff concedes that he had no license to carry on an employment agency; that if the alleged agreement is an employment agency one, the agreement would be unenforceable as held by the trial court and finally concedes that the restrictive covenant would also be unenforceable.

Plaintiff complains that the trial court did not consider the circumstances under which the agreement was written by plaintiff, the situation of the parties, the attendant circumstances and the objects plaintiff and defendant were striving to attain; and contends that consideration should be given to these subjects not for the purpose of changing the agreement but to secure light to measure its actual significance. "In short, we are to consider what was written in the light of the circumstances under which it was written, and give to the language a rational meaning consistent with the expressed general purpose." Casriel v. King , 2 N.J. 45, 51 (1949).

The record discloses that plaintiff used the trade name of American Chick Sexing Association and that he alone comprised the association. Plaintiff was once a check sexor. It is an art that only became generally known in recent years, and one that was a fairly closely held secret for a long while. Plaintiff built up a substantial business teaching and sending experts to hatcheries throughout the country to segregate chicks. At the time of trial there were approximately 16,000 hatcheries in the United States. Approximately 1,200 were customers of the plaintiff located in 41 states and three foreign countries. Plaintiff accumulated his customers by sending out circulars and advertising in national magazines and papers. For example, he exhibited at the New Jersey convention; called on hatcheries personally or by telephone or

wire, and sent representatives to interest them. If any hatcheries were interested, he would make the rounds of other hatcheries in the area to see if others might be interested; and tried to obtain work from sufficient hatcheries in any area to make it worthwhile both to himself and to the sexors. He bought hatchery customers from other chick-sexing service groups.

The development of the Vineland area, the locale involved in this action, began in Hammonton in 1940. Plaintiff entered into contracts with hatcheries in the Vineland area each year from 1943. Concededly plaintiff had a thriving business in the Vineland area during the years 1948, 1949 and 1950. In 1950 plaintiff had 30 hatcheries under written contract and served eight other hatcheries in the area without written contracts.

Defendant was born in the United States; went to Japan at the age of three; studied chick sexing at a school in Japan for three months and spent one month in practical training in that country; and returned to the United States in January, 1941, at the age of 17. In February, 1941 defendant went to see plaintiff to obtain a job. Plaintiff furnished him with employment, sending him to Butler, Pennsylvania with plaintiff's brother-in-law and sister to receive an apprenticeship. Thereafter, when the defendant was ready to go out on commercial work, plaintiff sent him to the Vineland area. Defendant worked with plaintiff from one month after his return to the United States until December 31, 1950, a period of approximately ten years.

The earliest written contract made between the plaintiff and defendant for work in the Vineland area was dated January 31, 1946 covering a period from January 31, 1946 to December 31, 1950. ...


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