deposition, testified that this agreement was meant to be in effect for "a lifetime." He clarified that statement by adding that the agreement was not meant to supply Inter-City with a lifetime supply of tires within a year but rather was meant to be in effect for longer than one year. Since the agreement cannot be fully performed within one year, it is unenforceable under the Statute of Frauds.
Further, even assuming the court finds that an agreement existed in 1980, the parties' subsequent written contracts nullified any oral agreement. Each dealer agreement signed by Mr. Erbesh on behalf of Inter-City from 1980 through at least 1982 contains a standard merger clause.
The clause provided that this "agreement supersedes . . . any other agreement or arrangement," that the written contract contained "the entire agreement between the parties" and that "any modifications, additions or waivers must be signed" by Uniroyal. Thus, by their terms, Inter-City's dealer agreements with Uniroyal constituted the final expression of their business relationship and superseded all other oral or written agreements or arrangements, including any alleged joint venture regarding the sale of Uniroyal tires by Inter-City. Therefore, Inter-City is precluded from asserting the validity of this oral agreement for a joint venture.
Assuming arguendo that this court agrees with Inter-City that a joint venture was contemplated by the parties in 1980, they have still not established the basic elements required for a joint venture under either New Jersey or New York law. Under both New Jersey and New York law, the requirements necessary to create a joint venture are: (1) an agreement between the parties manifesting some intent to be associated as joint venturers; (2) each party contributing money, property, effort, knowledge or some other asset to a common undertaking; (3) a joint property interest in the subject matter of the venture; (4) a right of mutual control or management of the enterprise; and (5) an agreement to share in the profits or losses of the venture. See Hellenic Lines, Ltd. v. Commodities Bagging & Shipping Process Supply Co., 611 F. Supp. 665, 679 (D.N.J. 1985); accord Orderline Wholesale Distributors, Inc. v. Gibbons, Green, Van Amerongen, Ltd., 675 F. Supp. 122, 126 (S.D.N.Y. 1987). From the record presented in this case, it is clear that the joint venture claim fails as a matter of law. The record is simply devoid of any evidence that the parties contributed to a common undertaking nor is there any joint property interest between the parties. Uniroyal and Inter-City did not pool their assets or profits. The arrangement was simply that Uniroyal sold Inter-City tires at a profit and Inter-City resold those same tires at a profit. The anticipation of separate profits for each party does not amount to an intention to share profits. See Hellenic Lines, 611 F. Supp. at 680 (anticipation of profits severally is not sufficient to create a joint venture). In Orderline, the court admonished that the absence of even one of the elements of a joint venture is fatal. Orderline, 675 F. Supp. at 126. Accordingly, summary judgment will be entered on the joint venture count.
Uniroyal has also moved for summary judgment on the issue of damages. Having granted summary judgment on the liability aspect of the case, the motion for summary judgment on damages is mooted and need not be addressed at this juncture.
INTER-CITY'S CLAIMS OF TORTIOUS INTERFERENCE (counts 6 and 7)
In Count six, Inter-City contends that Siegel Tire, and Richard Siegel, individually, tortiously interfered with Inter-City's contractual relations with Uniroyal. Count seven concerns Siegel Tires alleged interference with Inter-City's contract with General Tire. It is well settled that a plaintiff who alleges tortious interference with prospective economic advantage or contractual relations is required to prove that a third party intentionally and maliciously interfered with the present or prospective relationship between two other parties, and that the complaining party reasonably expected to receive economic benefit or advantage from the relationship. See Harris v. Perl, 41 N.J. 455, 197 A.2d 359 (1964). The malice required is "the intentional doing of a wrongful act without justification or excuse." Albert M. Greenfield v. SSG Enterprises, 213 N.J. Super. 1, 14, 516 A.2d 250 (App. Div. 1986) (citations omitted), certif. denied, 107 N.J. 99, 526 A.2d 174 (1987).
In the instant Counts, as in the other counts, no evidence has been presented of actionable interference by Siegel Tire or Richard Siegel with Inter-City's relationship with either Uniroyal or General Tire. Plaintiff has simply failed to put forth any evidence that could lead a rational trier of fact to decide that any tortious interference with contractual relations occurred. As has been discussed earlier in the antitrust context, no evidence of a conspiracy exists between Siegel and Uniroyal. Further, Uniroyal's decision to terminate Inter-City's distributorship was not an isolated decision. Uniroyal restructured its entire distribution scheme and as a result of such restructuring, lawfully eliminated Inter-City as a distributor. This court cannot read into a record evil motives which are simply not there. On a motion for summary judgment, the party opposing the motion has the affirmative duty to come forth with evidence which shows that a genuine issue exists. That party cannot simply rest upon the allegations or denials contained in the pleadings. Anderson, 477 U.S. at 248. In this case, Inter-City has come forth with only speculative descriptions of what certain parties might testify to at trial. This, however, is not enough. Inter-City has submitted no affidavits or declarations to substantiate their position. Inter-City had an affirmative duty to come forth with evidence at this juncture, in order to defeat the summary judgment motion. They have not done so and summary judgment will be granted on counts six and seven as well.
Siegel Tire has filed a counter-claim in this action charging Inter-City with tortious interference with its contractual relations with Uniroyal. This court has reviewed the allegations contained in the counter-claim and find them to be baseless. As a result, I will dismiss the counter-claim.
For the reasons stated above, summary judgment will be granted on Uniroyal's motion as to liability. The Siegel Tire motion for summary judgment will be granted. The Siegel Tire counter-claim will be dismissed.
An Order accompanies this Opinion.