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Vines v. General Outdoor Advertising Co.


December 2, 1948


Author: Hand

L. HAND, C.J.:

This is an appeal from a judgment, summarily dismissing a complaint in four counts, upon a quantum meruit for work and services rendered to the defendant by the plaintiff as a solicitor for outdoor advertising. The defendant before answer moved to dismiss the action by producing four written contracts under which the plaintiff served from March 1st, 1936, to March 1st, 1943, when he resigned; and, so far as is relevant to the disposition of the four counts, there is no dispute of fact. The first contract, executed on March 1st, 1936, provided that the defendant "employed" the plaintiff "to solicit" advertisements and "to render such other services as may be required of him"; and that he accepted the employment and agreed to give all his time to it, each party being free to end the employment at will by written notice. The plaintiff was to solicit only such advertisers as the defendant should "from time to time" assign to him, and these assignments might be "withdrawn * * * at any time," whether the "solicitation" or "negotiation" were "pending" or "prospective." The plaintiff was to have no "compensation" for securing any contract after any "assigned" advertising had been withdrawn, even though he might have "solicited" the contract, and "wholly or in part negotiated" it before the withdrawal. The pay was based upon a "quota" for each solicitor, fixed from time to time by a complicated computation, depending upon the contracts which he should "procure" from the advertisers "assigned" to him. No contract would be included, if the advertiser was "withdrawn" before "the acceptance and signing of the contract" by the defendant. The contract also contained the following clause: "Upon the termination of this agreement all rights of the salesman to compensation for any services rendered to the company hereunder or otherwise shall thereupon cease and terminate, and the salesman hereby waives and relinquishes any and all rights to any compensation from the Company for any services he may have so rendered." The three later contracts executed on April 8th, 1941, January 7th, 1942, and January 1st, 1943, did not differ in the provisions relevant to the action at bar, although the pay was a fixed weekly stipend, to which was added a bonus computed on the contracts procured by the solicitor. The "termination" clause and the clause permitting the withdrawal of "assigned" advertisers were incorporated in each, substantially unchanged.

[Portions of the opinion dealing with the issues of mutuality, duress and fraud are omitted herein as not pertinent to the scope of these reports.]

There remains the amorphous claim, based upon the Anti-Trust Acts. The judge held that, since the contracts reserved to the defendant the privilege of withdrawing any "assigned" advertiser at its pleasure, it could not be a wrong to withdraw the Liebmann Breweries by classing it as a "national" account and assigning it to Outdoor Advertising Company, Inc. In this we think he failed to consider the basis of such a claim. The Anti-Trust Acts*fn* give a right of action to "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws"; and it has been repeatedly held that those are within this language who have been so injured though they have no contract with the wrongdoer, but only an expectation of future dealings with him.*fn** There has been indeed much difference of opinion as to what is adequate proof that the "forbidden" act has caused "injury," and how great the "injury" was; but with that we have nothing to do upon a motion for summary judgment. We cannot deny the plaintiff an opportunity to prove that the defendant would have allowed him to continue to be the solicitor of the Liebmann Breweries, if it had not transferred the account to Outdoor Advertising Co., Inc.; or to prove that that transfer was in pursuance of an unlawful agreement between the two companies. If he should succeed on both issues, it would be no defense that the defendant was not bound to him by contract not to take away assigned advertisers. The absence of any contract obligation gave the defendant no more immunity from that tort than from any other tort. Decisions such as Connolly v. Union Sewer Pipe Co., [*] A. B. Small Co. v. Lamborn & Co.,*fn1 and Bruce's Juices v. American Can Co.,*fn2 are beside the point; they held that the buyer of goods from a seller, who is engaged in violating such a statute, may not keep the goods without paying the price. The theory was that the seller's unlawful enterprise did not forfeit his title to the goods and that, since the buyer got his own title from the seller, he was obliged to conform to the conditions imposed upon its transfer. In the case at bar the wrong had nothing to do with any contract between the parties; it would have made no difference if there had been no contract of any kind between them. Continental Wall Paper v. Voight*fn3 helps the plaintiff as little as the decisions, on which the defendant relies, help it.

The release provisions in the contracts do not protect the defendant; they were all limited to "compensation for services rendered," and the claim is for damages for depriving the plaintiff of the opportunity to render services. The case is not so clear as to the release of April 8th, 1941, which described the claims released as follows: "all claims and demands of any kind whatsoever to the date hereof, and particularly * * * any claims or demands for salary, commissions or other compensation under any employment or contract of employment between the undersigned and the said General Outdoor Advertising Co., Inc." Although the plaintiff says that on April 8th, 1941, he did not know that the transfer of the Liebmann Breweries had been made in pursuance of an illegal contract between the defendant and Outdoor Advertising Co., Inc., that ignorance might not alone be enough to avoid the release, had it contained only the general words.*fn4 Moreover, the fact that words of general import were followed by particular instances, did not inexorably leave no scope to the words of general import. In releases, as elsewhere, the intent of the parties is to be gathered from the instrument as a whole.*fn5 Nevertheless, the courts of New York accept the common law doctrine that in a release words of general import, followed or preceded by words relating to specific claims, are, ceteris paribus, limited to the specific claims.*fn6 For the present we need say no more than that the release of April 8th, 1941, did not inevitably release claims which the plaintiff might have under the Anti-Trust Acts, of which he was ignorant at the time.

The judgment will be affirmed insofar as it dismissed the four counts of the complaint; but it will be reversed insofar as it dismissed any claim the plaintiff may be able to establish under the Anti-Trust Acts. The cause will be remanded and judgment will be entered in the district court in accordance with the foregoing opinion.

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