Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Schettino, J.s.c. (temporarily assigned).
Appeal is taken from a summary judgment of the Law Division granted on a motion pursuant to R.R. 4:58-2, and R.R. 4:58-3.
Plaintiff's complaint is in three counts. By the first count he claims defendant and its predecessors in interest granted him for a valuable consideration a franchise consisting of an exclusive right, vested in plaintiff for the term of his natural life, to sell defendant's rust-proofing system within certain sales territories; that in April 1946 defendant undertook to remove from plaintiff's franchise territory a part thereof and that in May 1953 defendant undertook to remove the balance of the territory, and he therefore seeks an accounting and damages based on the commissions which he would have earned were it not for defendant's alleged wrongful acts. By the second count plaintiff claims he was unlawfully discharged and seeks an accounting and damages for the commissions which were lost by him as a result of defendant's wrongful act. By the third count plaintiff claims that even if defendant had the right to terminate whatever agreement they had, plaintiff was entitled to a reasonable notice of termination of his services, that no such notice was given, and he therefore seeks an accounting and damages.
Plaintiff alleges that the original agreement was made with Electro Rust-Proofing Co., a partnership, and that defendant succeeded to the rights and obligations of the original contracting partnership and was thereby obligated to plaintiff. Plaintiff's affidavit shows that the partnership consisted of Edwin H. Ingle and his brother, Arthur W. Ingle; that the Ingles brought about the incorporation of their business; that the affairs of the partnership were later carried on by an Ohio corporation known as Electro Rust-Proofing Corporation; that in 1947 there was a merger of the corporation
with Cathodic Engineering Company, Inc., and that the surviving corporation is the present defendant, Electro Rust-Proofing Corporation (N.J.).
Defendant's answer admits that it is the successor in interest of the Electro Rust-Proofing Corporation, an Ohio corporation; generally denies the allegations of the complaint; specifically denies the existence of any contract or representation as alleged by plaintiff or that the obligations of any such contract were assumed by the defendant; contends that plaintiff was an independent, non-exclusive sales representative of the defendant, permitted to operate and solicit business for defendant within a certain defined territory; that plaintiff was paid all commissions on sales in the area, and that on or about May 1, 1953, defendant terminated plaintiff's right to sell its products and so advised him. The answer additionally sets up a special defense of the statute of frauds in that the contract alleged, if any, was one not intended to be performed within one year after the making thereof and was not in writing. R.S. 25:1-5(e).
Plaintiff took depositions of one Frank M. Tobin, a former employee of Electro Rust-Proofing Company, which depositions have been filed in this cause. Defendant served interrogatories which were answered by plaintiff and are also on file in this cause. In support of its motion, defendant relied upon the pleadings, interrogatories, depositions, and the affidavits attached to the moving papers on this motion.
R.R. 4:58-3 provides, in part:
"The judgment or order sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show palpably that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."
If the pleadings and answers to interrogatories and affidavits filed in support of and in opposition to the motion show the existence of a genuine question of fact which, if proven, would establish the plaintiff's right to recovery on the issues joined by the complaint and answer, and such question of fact can be established by evidence in the form of depositions, interrogatories,
affidavits, and admissions which would be evidential on the trial, then the trial court erred in granting a summary judgment. If no such question of fact could be established by the record, the trial court was not in error.
Under R.R. 4:58-3 the court must find an absence of a triable issue of material fact, for the granting of the motion depends on a showing "palpably that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Defendant's motion admits the evidence and the inferences which may properly be drawn from it and the remainder of the record and such evidence and inferences will be construed in the light most favorable to plaintiff and the motion for summary judgment will be denied in the absence of a clear showing by the moving party -- the defendant -- that such a judgment should be granted. In Savarese v. Pyrene Manufacturing Co. , 9 N.J. 595, 599 (1952), Mr. Justice Wachenfeld for the Supreme Court said:
"It is axiomatic that on a motion for summary judgment the evidence and the inferences which may properly be drawn from it will be construed in the light most favorable to the party against whom the motion is made."
See also Heuter v. Coastal Air Lines, Inc. , 12 N.J. Super. 490 (App. Div. 1951); Powell v. Fuller Brush Co. , 15 F.R.D. 239 (D.C.N.J. 1954).
The laboring oar must be carried by the defendant here. On this appeal we must take as true the affidavits and depositions of the plaintiff. Gretkowski v. Wojciechowski , 26 N.J. Super. 245, 248 (App. Div. 1953). We recite plaintiff's "facts" as shown by the record. Prior to May 30, 1939, plaintiff had extensive experience as a manufacturer's representative in merchandising. While in Japan he met Frank M. Tobin, who later became factory sales representative of Electro Rust-Proofing Co. In April 1939 Tobin talked to plaintiff at the latter's home in ...