Summary
In Messinger v. Franzblau, 118 Atl. Rep. 260, Vice-Chancellor Backes held that the phrase "within an area of at least ten city blocks" were too vague.
Summary of this case from Sandullo v. La BrunaOpinion
No. 50/275.
07-18-1922
MESSINGER v. FRANZBLAU et al.
Thomas Brunetto, of Newark, for complainant. Merritt Lane, of Jersey City, for defendants.
Bill for injunction by Julius E. Messinger against Leon Franzblau and another. Bill dismissed.
Thomas Brunetto, of Newark, for complainant.
Merritt Lane, of Jersey City, for defendants.
BACKES, V. C. This suit is to restrain the defendants from breaching a covenant not to engage in a competitive business. The defendant, Leon Franzblau, entered into an agreement in writing with the complainant to sell to him the delicatessen business at 326 and 328 Bloom field avenue, Montclair. Leon's wife, Anna Franzblau, executed the bill of sale, in which she covenanted that:
"I myself, or my husband, will not open, conduct, or be employed or interested in any way in any store selling at retail those things which are usually sold by a grocery or delicatessen store within an area of at least ten city blocks of above-described store for a period of five years."
Leon and Anna, or either of them, opened a delicatessen store at 559 Bloomfield avenue, 3 1/2 blocks away, and over 2,000 feet distant from the premises protected by the covenant. It is claimed that the business sold to the complainant belonged to Leon and his wife jointly, and that the wife was used by him as a cloak to execute the bill of sale, and that the new store is also owned and conducted by them jointly, and the prayers are to reform the bill of sale to include Leon, and to restrain him and his wife from violating the covenant. The testimony is not satisfactory that Leon owned the business for which his wife executed the bill of sale, and as to which she alone covenanted, or that he was privy thereto, nor that Mrs. Franzblau has any interest in the offending business. On this score, for want of preponderating proof to support the allegations, the bill must fail.
But, If it were shown that she was a coowner of the new store, relief would have to be denied for want of certainty and definiteness of the covenant. The restrictive words, "within an area of at least ten city blocks," are as elastic as city blocks are variant. There is no uniformity in city blocks, as is well known. If "city blocks" has a technical meaning, it has not been brought to my attention. The language does not permit of the construction that ten blocks lineally measured along Bloomfield avenue was intended. If that had been the case, it would have been a simple matter to have said so. Obviously the parties were not so minded, for then there would be no violation of the covenant if the covenanter engaged in trade in the next cross street, one block removed from Bloomfield avenue. That would be a greater grievance than the one now complained of. Then, too, the limitation of the covenant to the "area" of the blocks precludes the lineal measurement. It seems to me, therefore, that the covenant is not violated if the defendant's store is beyond, as it is, the area of the ten blocks immediately surrounding the protected store. This view may not fully meet the understanding of the complainant, but it does fulfill the intention of the parties as expressed in the covenant.
The bill will be dismissed.