"a substantially greater delay in cleaning up" the $400,000 loan. This is, like the contents of the January 10 memorandum, totally inconsistent with Mr. Goldman's testimony.
Returning briefly to the Feuerstein-Goldman conversation of January 10, Mr. Goldman notes "Feuerstein once again promised that the next factoring business that is available out of the Malden complex will come our way." (Emphasis supplied). This is a most important disclosure. Mr. Goldman in his trial testimony did not disclose that a promise to give to Congress "the next factoring business that is available out of the Malden Complex" had been made to him by Mr. Feuerstein prior to January 10, 1969. Yet obviously this promise had previously been made, and made at one of the two November, 1968, conferences (Mr. Goldman had not spoken to Mr. Feuerstein after their second meeting). Mr. Feuerstein, on his part, supplied when this promise was made: It was at the second conference he conveyed this promise, at the same conference, according to him, that he explained why his father wanted to cancel the agreement and Mr. Goldman agreed to do so, and I so find. Beyond the mere making of the statement is the significance of its import. In the light of common experience, it can be adjudged to have been a promise to show Malden's appreciation for Congress having agreed to release Malden from the factoring agreement, furnishing further support for Mr. Feuerstein's testimony that termination was agreed upon at that point in time.
It is unnecessary to reiterate Mr. Feuerstein's testimony, hereabove already detailed, which, as I have indicated, I find to be true. That he had a right to believe and did believe, when he left the second conference with the Goldmans, that he was free to transfer American receivables to Meinhard Commercial I also find to be a fact. Had he been led to any other conclusion he had only to wait till June, 1969, when, by virtue of an earlier 60-day notice, the factoring agreement would not automatically renew itself. It would have been most unreasonable conduct to have moved the receivables, on not substantially better terms, and solely on the basis of friendship, and run the risk of still being obliged to pay Congress for no services at all.
As a further analytical step, assuming Mr. Goldman's version of the November meetings, that is, that he was never asked to consent to termination, if after the second November meeting Mr. Feuerstein still was being pressured by his father to transfer American receivables, would not Mr. Feuerstein have gone back to Mr. Goldman before transferring the accounts? Still assuming Mr. Goldman's version, the request to terminate not having been raised, Mr. Feuerstein would have been acting irrationally by incurring risk of duplicate expense without at least trying to get a consent to termination.
For the foregoing reasons, first, my own examination of what Mr. Goldman said and how he said it (that is, his demeanor, his method of response, and the like), and second, the analytical process to which I have given lengthy expression, I find as a fact that Mr. Feuerstein did ask for Congress' consent to terminate, and that this consent was given. I further find that Malden transferred American's receivables as a result of what was said and done by Mr. Goldman in November, 1968; and that, thereafter, by his conduct in January and February, Mr. Goldman continued to lead defendant to believe he did not object to the aforesaid transfer.
The foregoing findings of fact must now be valued in the light of appropriate principles of law.
The plaintiff contends that, even if there were an oral termination in November, 1968, such is nullius juris in that (a) the factoring agreement required a writing to terminate it; (b) under the agreement itself, the meaning and validity of this requirement must be determined by the substantive law of New York; and (c) New York statutory and decisional law bar oral termination of an agreement which, by its own terms, requires its termination to be in writing. I shall examine each of these contentions in turn, but before doing so, the not unusual issue of what jurisdiction's law is to be applied must be resolved. The initial step in that regard requires ascertainment of the conflict of laws rules which New Jersey state courts would apply, confronted with this, a contract case. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941); Purcell v. Kapelski, 444 F.2d 380, 381 (3 Cir. 1971), cert. denied, 404 U.S. 940, 92 S. Ct. 283, 30 L. Ed. 2d 254 (1971).
Absent a strong public policy contravened by so doing, New Jersey courts normally will apply the law of a sister state in deciding a question of construction or validity of a contract made and performed in that state.
Colozzi v. Bevko, Inc., 17 N.J. 194, 202, 110 A. 2d 545, 549 (1955); Farris Engineering Corp. v. Service Bureau Corp., 406 F.2d 519, 520 (3 Cir. 1969); Award Incentives, Inc. v. Van Rooyen, 263 F.2d 173, 176-177 (3 Cir. 1959); and see Lobek v. Gross, 2 N.J. 100, 102, 65 A. 2d 744, 745 (1949); In re Lea Fabrics, 226 F. Supp. 232, 237 (D.N.J. 1964).
New York is the situs of all of the primary contacts involved in the making and performance of the factoring agreement in suit. Also, the parties to the factoring agreement provided that it was to be "construed according to and be governed by the laws of the State of New York." (para. 15 -- Ex. P-1).
Therefore, absent an opposing public policy, the substantive law of New York must be applied to the facts found herein.
Plaintiff contends that the agreement in suit requires it be terminated only in writing. I agree. (Ex. P-1; para. 12).
No public policy appearing to foreclose it,
New York statutory and decisional law, applied to this contractual provision, provides a statute which by its terms enforces such a written termination requirement. New York General Obligations Law § 15-301, subd. 4 provides:
If a written agreement or other written instrument contains a provision for termination or discharge on written notice by one or either party, the requirement that such notice be in writing cannot be waived except by a writing signed by the party against whom enforcement of the waiver is sought or by his agent.