on May 2, 1991. The tanks and related equipment have not been removed from the property to date.
Defendant produced undisputed evidence that the cost to remove the tanks in 1988 was $ 16,500 plus any costs associated with clean-up if contaminated soil was found; whereas the cost to remove the tanks in 1993 was approximately $ 30,000 to $ 40,000 plus any costs associated with clean-up of the soil if contaminated. There was also evidence that in the years since 1988, regulatory compliance requirements for removal of such tanks and environmental remediation of the excavation site have substantially increased.
Count One of the Complaint seeks specific performance of Getty's alleged obligation to remove the underground tanks in the manner specified by plaintiff. Counts Two, Three and Four of the Complaint seek damages from Getty in the form of rental value allegedly due to plaintiff on theories of breach of contract (Count Two), tortious interference with prospective economic advantage (Count Three), and interference with contractual relationships (Count Four). The amount of damages claimed on those counts is $ 188,000. See discussion infra section III.B. The Answer contains a counterclaim for damages relating to plaintiff's refusal to allow the tanks to be removed, in the event that specific performance is granted on Count One of the Complaint. The amount of the counterclaim is the difference between the cost of removal in 1988 and the cost at present.
The substantive law of New Jersey is applicable in this diversity action, based on the location of plaintiff, the property, and the fact that many of the events relevant to this action took place in the state of New Jersey. Erie R. Co. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). Each of the parties bears the burden of proving their respective claims. See Michael Halebian N.J., Inc. v. Roppe Rubber Corp., 718 F. Supp. 348 (D.N.J. 1989); Raymond v. Cregar, 38 N.J. 472, 185 A.2d 856 (1962); Weisbrod v. Lutz, 190 N.J. Super. 181, 462 A.2d 610 (App. Div. 1983); Kurtz v. Oremland, 33 N.J. Super. 443, 454-55, 111 A.2d 100, 107 (Ch. Div.), aff'd, 16 N.J. 454, 109 A.2d 286 (1954).
A. The Claim for Removal of the Tanks
Plaintiff asserts that under the terms of the Equipment Loan Agreement, (Ex. J-1), Getty is obligated to remove the tanks and related equipment. (Pl.'s Trial Br. at 6.) Plaintiff also asserts that Getty is the owner of the tanks, and for that reason also Getty should be required to remove them. (Id.) These are related but not identical theories, which will be addressed here in sequence.
1. Obligations of the Parties under the Equipment Loan Agreement
It is well settled that where the terms of a written contract are clear and unambiguous, the contract must be enforced as it is written. Levison v. Weintraub, 215 N.J. Super. 273, 276, 521 A.2d 909, 910-11 (App. Div.), certif. denied, 107 N.J. 650, 527 A.2d 470 (1987). Here, it is undisputed that Getty had been a tenant on the property before the property was acquired by plaintiff. When plaintiff bought the property and began operating it as a Getty service station, Getty allowed its equipment, including the pumps and tanks, to remain on the property and be used by plaintiff pursuant to the Equipment Loan Agreement dated July, 1985.
The terms of the Equipment Loan Agreement (hereafter "the Agreement") and the surrounding circumstances, indicate that the tanks and related equipment were loaned to plaintiff under an express agreement of bailment for mutual benefit. There is a well developed body of legal principles applicable to this species of contractual relationship. See generally, Words and Phrases Bailment (1968); 8 Am.Jur.2d Bailments (1980); 8 C.J.S. Bailments (1988). Those principles, as articulated in a long tradition of consistent case law developed in New Jersey and other states, are applicable in ascertaining the rights and obligations of the parties under the Agreement in this case.
A bailment contract, express or implied, is created when personal property is delivered by one person into the possession of an another person in trust for a specific purpose, under an agreement that the property will be returned to the owner, or accounted for, or kept for the owner to reclaim it, when the purpose is accomplished. See generally, 8 Am.Jur.2d Bailments § 1, et seq.. The elements of "bailment" are delivery of personal property by one person to another in trust for a specific purpose, acceptance of such delivery, and express or implied agreement to carry out the trust and return the property to the bailor. State v. Carr, 118 N.J.L. 233, 192 A. 36 (E. & A. 1937); Cerreta v. Kinney Corp., 50 N.J. Super. 514, 517, 142 A.2d 917, 919 (App. Div. 1958); Gilson v. Pennsylvania R. Co, 86 N.J.L. 446, 92 A. 59 (1914), aff'd, 87 N.J.L. 690, 94 A. 1102 (E. & A. 1915); see also Bill Bell, Inc. v. Ramsey, 284 S.W.2d 244, 247 (Tex. Civ. App. 1955). The word "bailment" is derived from the French word "bailler" meaning "to deliver"; and the objects or purposes of a bailment may be as various as the transactions of men. State v. Carr, 118 N.J.L. at 234. "In order to constitute a sufficient delivery of the subject of a bailment in any given case, it is the general rule that there must be such a full transfer, actual or constructive, to the bailee as to exclude the possession of the owner and all other persons and give to the bailee, for the time being, sole custody and control thereof." 8 Am.Jur.2d § 68; see Cerreta v. Kinney Corp., 50 N.J.L. at 517; J.L. Querner Truck Lines, Inc. v. Safeway Truck Lines, Inc., 65 N.J. Super. 554, 561, 168 A.2d 216, 220 (App. Div.), aff'd, 35 N.J. 564, 174 A.2d 201 (1961). The requirement of delivery may be satisfied where a person, in vacating the possession of real estate, leaves his chattels on the property with the permission of the successor in possession of the land. Banks v. Korman Assoc., 218 N.J. Super. 370, 372-73 527 A.2d 933, 934-35 (App. Div. 1987); see also 8 Am.Jur.2d § 68 (citing Beauchamp v. Leypoldt, 108 Neb. 510, 188 N.W. 179 (1922)). The obligation to return the property received is the essential feature of a bailment since the purpose of a bailment contemplates the eventual return of the property to the owner. State v. Carr, 118 N.J.L. at 234; Zuppa v. Hertz Corp., 111 N.J. Super. 419, 423, 268 A.2d 364, 366 (Essex County Ct. 1970); see also Fargnar v. McAlevy, 142 Pa. 233, 21 A. 811 (1891).
All of the essential elements for creation of a bailment relationship are present in this case. As set forth in the Agreement, the tanks and related equipment were loaned by Getty to Sgro for the purpose of storing, handling and dispensing Getty products. (Agreement P 1.) It was specified that the equipment was personal property owned by Getty:
The Equipment shall at all times remain the property of Company and shall at all times remain, be considered and treated as personal property and in no sense fixtures or part of the real estate regardless of the manner in which the same is or may be installed or placed on the Station.