Opinion
November 23, 1906.
David M. Neuberger, for the appellant.
Samuel Cohn, for the respondent.
This action is brought to enforce a written agreement whereby the defendant agreed that he would "buy, use and sell upon the premises, viz., #2403 First Avenue, Borough of Manhattan, City of New York, and more fully described herein, the beer brewed by George Ringler Co., and their successors and assigns, and only such ales as may be approved for and during the full and unexpired term of the lease aforesaid, viz., Fifteen years from January 1st, 1906; * * * and should said Henry Mohl fail to buy, use and sell upon said premises such ales as may be approved, or buy and sell exclusively the beer brewed by said George Ringler Company, or their successors and assigns, upon said premises aforesaid, it shall be lawful for said George Ringler Co., their authorized agent or attorney, or their successors and assigns, to enter said premises and take possession thereof, * * * but it is understood that should said Henry Mohl, his executors, administrators and assigns fully and faithfully perform the conditions of this agreement, the said Henry Mohl, his executors, administrators and assigns are to peaceably and quietly enjoy the possession of said premises for and during the entire term of fifteen years from said first day of January, 1906."
The complaint alleges the execution of this agreement; that the defendant failed to comply with said agreement by using and selling on the premises other beer than that brewed by the plaintiff, and that on or about the 8th day of August, 1906, the defendant refused, and still refuses, to buy, and also to use and sell upon said premises to the exclusion of all other beer, that brewed by the plaintiff, and also refuses to buy the beer brewed by the plaintiff, and to use and sell the same upon the said premises; that the sale of beer upon said premises would amount to several thousand dollars per annum, and it is impossible to estimate the losses which would result to the plaintiff if the defendant continues to violate the said agreement, and unless the defendant, his agents and servants are enjoined from violating the same an irreparable injury will result to the plaintiff and the plaintiff is without any adequate remedy at law.
The defendant denies violating the agreement and alleges that the plaintiff refused to sell him beer and for that reason he was compelled to procure beer elsewhere.
This action in effect is to specifically enforce a contract by a mandatory injunction. In such a case a temporary injunction should not be granted unless it appears that doing the act during the pendency of the action will "produce injury to the plaintiff." (See Code Civ. Proc. § 603). The effect of this injunction is to compel the defendant to purchase the beer that he requires from the plaintiff. The only injury that his not purchasing the beer of the plaintiff will produce will be loss of profits, and if the plaintiff succeeds he can obtain a judgment for such profits. The amount can be ascertained from the amount of beer that defendant used in the meantime. If the injunction in its present form is allowed to stand, if the plaintiff refuses to sell the defendant beer, the defendant will have to go out of business. The defendant can purchase no beer except that of the plaintiff, and there is no obligation on the part of the plaintiff to sell the defendant any beer at all.
I think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to continue the injunction denied, with ten dollars costs.
McLAUGHLIN, CLARKE, HOUGHTON and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.