Price, Gaulkin and Sullivan. The opinion of the court was delivered by Gaulkin, J.A.D.
[68 NJSuper Page 340] In April 1959 Esslinger's Inc., a brewer of beer, sued Michael Alachnowicz, one of its former distributors, for $4,509.84 on a book account. Alachnowicz filed a counterclaim for damages for termination of his distributorship, but in it he made no claim of the lifetime contract hereafter mentioned. On July 10, 1959 Esslinger's was granted summary judgment for the $4,509.84 plus interest, which Alachnowicz paid. It was not until September 1959 that Alachnowicz moved to amend the
counterclaim to set up said lifetime contract. After the amendment was allowed the case proceeded to a pretrial order, unfortunately almost completely devoid of the factual contentions of the parties, and then to a trial in the Superior Court, Law Division, which resulted in a judgment in Alachnowicz's favor of $48,000. Esslinger's appeals.
Esslinger's contends that its motions to dismiss the counterclaim at the end of the counterclaimant's case and at the end of the whole case should have been granted.
Whether there was a lifetime contract depends entirely upon the evidence of what was said in a single conversation which allegedly took place in March 1949 between Michael Alachnowicz, his son Stanley, and J. R. Brown, an officer of Esslinger's. Michael did not testify, allegedly because he was 72 years old and ill. Stanley was the only one who gave evidence on the subject on behalf of the counterclaimant. He testified (emphasis ours):
"Q. Stanley, after you learned, as you have already described, that Laurel Beverage had been cut off as distributors by Esslinger's, then you went in to see Mr. J. R. Brown, did you not?
Q. Tell us in your own words what you said to him at the time, and what he said to you or to you or your father?
A. We went in and we seen Mr. Brown. We told him * * *
Q. You said, 'Mr. Brown,' you mean J. R.?
A. Yes. We said, 'We come to see you about the Laurel Beverage again.' Seeing whether we could possibly service them , because they are very annoyed that they were told to buy off of South Jersey. I mentioned, 'What is the reason you cut off Laurel Beverage's supply?'
He said, 'Laurel Beverage is just interested in selling other brands.'
I said, 'We are not. We are only interested in selling Esslinger's.'
Q. By other brands, do you mean competitive brands?
A. Yes. I said, 'We have nothing else but Esslinger's. Can we service these accounts because at the present time we are in these accounts with Red Cap Ale. We know everyone of them and they are very annoyed.'
He said, 'Yes, I am getting a little bit of word back that they are very annoyed, and I have probably made a mistake. I had no
alternative but to make the move, because they are pushing other brands.' And I said, 'Can we service them?'
He said, 'Yes. Go out and straighten out the trouble.'
I said, 'Yes. What kind of agreement are you going to give us in writing ?'
And he said, 'I am not going to give you no written agreement.'
I said, 'Mr. Brown, you remember it's only about six or seven months ago that you took away the Fornataro accounts, and you told us after we straightened out the trouble they would be our accounts. You went back on your word once. What assurance do we have that you won't go back on your word again two or three years from now after we straighten out the trouble?'
He says, 'I want you to go in and straighten out this trouble.'
I said, 'We want some written agreement.'
He said, 'I am not giving you a written agreement, it's against the policy of the company. I promise you I will never cut you off.'
Then my Dad says, 'How about my son?'
He says, 'Say, my son is active in the business. I am not going to live forever.'
He says, 'Just go out and do a good job. I am not going to promise them to you in writing, so just go out and do a good job. As long as you go out and do a good job, I promise you I will never cut you off, and the same thing for your son.'
I said, 'We are willing to take them , but we are going to have to put on new equipment and new men. Under those conditions you will never take them away ...