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HEISMAN v. SEISS. (11/16/61)

November 16, 1961

HEISMAN, APPELLANT,
v.
SEISS.



Appeal, No. 252, Oct. T., 1961, from judgment of Municipal Court of Philadelphia, Nov. T., 1957, No. 1787, in case of Marvin Heisman, trading as Marvin Vending Co. v. Constantine Seiss. Judgment affirmed.

COUNSEL

Irwin Paul, for appellant.

David H. Kubert, with him Budd & Bertas, for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Flood

[ 196 Pa. Super. Page 452]

OPINION BY FLOOD, J.

This is an appeal from the dismissal of plaintiff's motions for a new trial or judgment n.o.v. following an action in assumpsit for breach of a contract under which defendant granted the plaintiff an exclusive right to place a cigarette vending machine upon defendant's premises for a five year period.

The only question raised by the appellant as shown by his statement of the question involved is whether upon breach of the contract by the appellee, the appellant was entitled to damages for the unexpired term as set forth in the contract.

However, we do not reach that question, in our view of the case, since we agree with the court below that there was no breach of the contract by the defendant for the reasons set forth by Judge KALLICK in his opinion as follows:

"The plaintiff, engaged in the vending machine business, placed a cigarette vending machine in the defendant's place of business at 728 Chestnut Street, Philadelphia, under a written contract dated May 11, 1956. By the terms of the said contract, 'the defendant granted to the plaintiff the exclusive right to sell cigarettes from his premises for a period of five years from a cigarette vending machine. The defendant was to receive as a consideration a certain percentage, two cents, per pack, for every package sold from his premises.'

"The machine was installed and remained on the defendant's premises until October 12, 1957. About a week prior to the latter date, the defendant sold his business and notified the plaintiff of this fact, at the same time suggesting to the plaintiff either to make a new deal with the purchaser of the defendant's business or, failing in that, to get his machine off the premises. The plaintiff had to remove his machine. The suit is for the estimated profit calculated on the basis of $4.80

[ 196 Pa. Super. Page 453]

    per week for the unexpired term of the contract of ...


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