or oversupplies in the action of the Dealer Policy Board on November 3, 1960 rescinding the original termination. (N.T. 126; Pls. Ex. 3).
31. In any event, plaintiffs' complaints about shortages or oversupplies or increased sales objectives concerned difficulties which had also been experienced by another dealer, plaintiffs' own witness, Swenson, who did not claim he was coerced or discriminated against. (N.T. 107-109, 112).
32. In 1961 when plaintiffs' sales performances deteriorated, Swenson increased his sales by 500 cars over 1960, because he put on an aggressive advertising campaign. (N.T. 104, 105; 108, 109).
33. The testimony of plaintiff Bateman at the hearing on April 13, 1962, was not specific as to plaintiffs' advertising expenditures. Such indirect references as were contained in his testimony did not indicate that plaintiffs' advertising was conducted on a large scale. (N.T. 44, 52-65).
At the supplemental hearing on January 4, 1963, he testified that the plaintiffs had expended during the past five years an average of approximately $ 10,000 per year for advertising the business of the dealership.
By contrast, plaintiffs' own witness, Swenson, testified that his advertising expenditures amounted to about $ 8,000 per month, or $ 96,000 per year.
34. Plaintiff Bateman agreed that what defendant's sales representatives did was to make recommendations and suggestions to him. (N.T. 156).
35. One of plaintiffs' apparent grievances was the frequency of visits by one Frank, a sales representative of defendant. Those visits ceased to be frequent after March, 1959, however (N.T. 66). Plaintiffs' witness Swenson testified that Frank visited him about as frequently as plaintiffs (N.T. 107, 108). Moreover, plaintiff Bateman admitted that what Frank did was to make recommendations or suggestions, which he was permitted to do under the Act. (N.T. 156, 157). Plaintiff Bateman also explained that there was a shortage of cars due to the steel strike (N.T. 67). And after the frequency of Frank's visits stopped in March, 1959, most of plaintiff Bateman's dealings were with defendant's representative, Harris, with whom his relations were pleasant and cordial (N.T. 67, 147).
36. Plaintiff Bateman's testimony as to assets of the dealership, at the hearing on petition for preliminary injunction on April 13, 1962, did not specify an item for good will (N.T. 19). No other evidence on that matter was offered at that time.
At the January 4, 1963 hearing, plaintiff Bateman made assertions as to good will value. He also testified as to the past earnings of the operation, and its repeat business. Without denying that the dealership has good will value, accordingly, this Court is in no position to make a specific finding as to the value, be it more or less, of the good will of the business.
37. Plaintiffs sustained a substantial loss on their car sales for the first nine months of 1961 (N.T. 162).
38. The dealer was offered termination benefits under the sales agreement, whereunder defendant offered to repurchase the dealer's new vehicles, parts, tools, etc., as defined in defendant's offer, in an estimated sum of close to $ 175,000, which was only a little less than the net worth of the partnership (N.T. 18, 19, 171; Def's Ex. 3).
39. At the further hearing on January 4, 1963, plaintiff Bateman testified that plaintiff dealer has no new Ford automobiles in stock, but is still operating as a going concern. Plaintiffs' requested finding that such are the facts is adopted.
40. On the same testimony, it is also found as a fact that plaintiff dealer has been unable to obtain any new Ford automobiles since April of 1962.
41. Plaintiff Bateman also testified at the January 4, 1963 hearing, and it is found as a fact, that the plaintiffs, as the result of financial losses due to a lack of new Ford automobiles, are faced with the likelihood of having to go out of business unless able to obtain new Ford automobiles before the end of February, 1963.
CONCLUSIONS OF LAW
1. Plaintiffs have not shown that defendant failed to act in good faith as defined in the Dealer's Act, in terminating or failing to renew the sales agreement which is the basis of plaintiffs' claim.
2. Plaintiffs have failed to show that defendant engaged in coercion, intimidation, or threats thereof with respect to the termination of the sales agreement which is the basis of plaintiffs' claim.
3. Defendant's conduct with respect to said sales agreement has not amounted to more than recommendation, endorsement, exposition, persuasion, urging or argument in favor of action on the part of plaintiffs or their predecessor and under the Dealer's Act such conduct is privileged and cannot be deemed to constitute a lack of good faith.
4. Defendant did not discriminate against plaintiffs in its dealings with plaintiffs.
5. Plaintiffs have not shown that they will suffer irreparable harm as a result of termination of the dealership, and plaintiffs have an adequate remedy at law.
6. No injury or damages sustained by plaintiffs is attributable to conduct on the defendant's part which violated the Dealer's Act.
7. Defendant was privileged to and did terminate the sales agreement for cause on 90 days' notice, pursuant to its terms.
8. Plaintiffs materially breached the sales agreement by failing to notify the Chairman of defendant's Dealer Policy Board, prior to its termination of the agreement, of any claim that they had been coerced or intimidated.
9. Plaintiffs have not established that they have a clear right to relief, and accordingly a preliminary injunction cannot be issued.
10. Plaintiffs failed to prove bad faith, coercion, discrimination or threatened irreparable harm warranting the issuance of a preliminary injunction under the law.
11. The Court having balanced the equities of the parties, concludes that the plaintiffs are not entitled to the extraordinary remedy of a preliminary mandatory injunction.
12. Under all of the circumstances, plaintiffs' application for a preliminary injunction must be denied.
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