The opinion of the court was delivered by: BYERS
Defendants' motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, on the ground that there is no genuine issue as to any material fact, and that the defendants are entitled to judgment as a matter of law.
The amended complaint asserts two causes of action:
(2) As stated in the plaintiff's brief, a claim for relief which 'is essentially equitable in nature and based upon estoppel. * * * whether or not the defendants had a right to reduce the plaintiff's zone of influence after the plaintiff had purchased and altered a building in reliance upon a statement of the defendants that they would not change the plaintiff's zone of influence.'
That which is described as a zone of influence is a territory embraced within the Borough of Brooklyn in which the plaintiff, as a dealer in Chevrolet cars, had the right to solicit sales and make deliveries, and also the right to make delivery to customers who sought to do business with the plaintiff, whether or not they resided within the said zone.
Upon this motion, the defendants present:
(a) Affidavit verified September 11, 1946, of Beardslee, Secretary of General Motors Corporation, hereinafter called 'General Motors', and former Assistant Secretary of General Motors Sales Corporation, hereinafter called 'General Motors Sales Corporation', from October 23, 1936, until January 2, 1942, when that corporation was dissolved.
(b) Amended complaint, answers of both defendants, and the entire file in this cause.
(c) Depositions of the plaintiff's president, taken at the instance of defendants, during the months of January, February, and March of 1946.
(d) Printed records in a case in the Southern District Court in a prior action brought by the plaintiff against these defendants and others, reported in 37 F.Supp. 999, 2 Cir., 127 F.2d 822; certiorari denied 317 U.S. 695, 63 S. Ct. 436, 87 L. Ed. 556.
(e) Answering affidavit of plaintiff, verified September 24, 1946, and supplemental answering affidavit of plaintiff, verified September 28, 1946.
(f) All exhibits tendered on this motion.
It appears from the exhibits attached to the amended complaint that on January 3, 1939, the plaintiff and the Sales Corporation entered into a selling agreement similar to that of all dealers, which recites that the plaintiff is the duly constituted agency for Chevrolet motor vehicles, etc., and grants to the plaintiff as dealer the franchise to sell Chevrolet motor vehicles in the following specified territory '(but not elsewhere) namely: Non-exclusive selling franchise in the territory known as New York Zone'.
The remaining terms and conditions, which were attached to the selling agreement, do not require discussion in this connection, since the controversy has to do with the alteration of the dealer's zone of influence while the said selling agreement remained in effect.
That alteration took place on or about August 1, 1939, and is relied upon by the plaintiff as establishing the breach of contract which constitutes its first asserted cause of action.
According to the terms and conditions of the contract, it was subject to termination and cancellation by the plaintiff pursuant to one month's written notice of intention to that effect, and such notice was given on July 10, 1940, effective September 1, 1940.
It is not clearly shown whether a new contract was made in January of 1940, which was cancelled as above, or that the 1939 agreement was carried into and through 1940 until September 1st.
No copy of a 1940 contract was submitted by either party, but it should be noted that the original complaint was filed June 27, 1945.
The question for decision as to the first cause is whether a breach of the 1939 contract has been established, giving full weight and value to the testimony of the ...