DocketNumber: Civil Action No. 563
Citation Numbers: 70 F. Supp. 1003
Judges: Delehant
Filed Date: 7/8/1946
Status: Precedential
Modified Date: 11/27/2022
By its order of June 22, 1946, the court announced final ruling upon the defendant’s motion to dismiss and motion for more definite statement or bill of particulars; but reserved its ruling upon the motion to strike from paragraph VI of the complaint, the words “and by virtue of the Soldiers and Sailors Civil Relief Act.”
The complaint prays for judgment in a large sum of money for damages allegedly sustained by the plaintiff as a result of the defendant’s averred failure and refusal to reinstate a local Ford automobile accessories and equipment agency contract surrendered by the plaintiff and mutually can-celled in August, 1942, in anticipation of his military service, but under an alleged agreement by the defendant to restore the relations between him and the defendant upon his return to civilian status. In the cited paragraph of the complaint, otherwise resting entirely upon the alleged agreement and its breach, the plaintiff after alleging that he was entitled to the restoration 'of his agency “upon the promise of said defendant,”’ adds the presently challenged language, presumably in specification of another foundation of the right he claims. It constitutes the sole reference in the complaint to the Soldiers’ and Sailors’ Civil Relief Act, 50 U.S.C.A. Appendix, § 501 et seq.
The defendant’s motion to strike contends that’ the phrase at which it is directed is immaterial and redundant and that the Act referred to has no application to the issues tendered in the complaint.
Upon oral argument counsel for the plaintiff stated informally that they regarded Stockton v. Ford Motor Company, D.C. Idaho, 61 F.Supp. 261, as persuasive authoi’ity affirming the applicability of the Act in the present case. It is also cited in their typewritten brief submitted to the court. Whether the Stockton opinion has obj ective merit need not be declared in this ruling. A reader of'it can not fail to observe that its writer manifested a patent uncertainty about the validity of his position. But it is simply not in point in the present issue. There, after pledging cooperation to a departing enlistee who retained his local agency contract and endeavored, through hired employees, to continue his business, the defendant thereafter, first, demanded the soldier’s surrender of his contract, and secondly, failing to obtain the surrender, served under the contract a formal cancellation notice, and, on the expiration of the time limited therein, cancelled the agency. In the present case, the plaintiff, before entering the military service, formally and finally surrendered his contract, though, as he contends, under a promise by the defendant, later violated, to reinstate it on his return to civilian life.
The court is tentatively of the opinion that nothing either in the underlying contractual relations of the parties to this action, or in the alleged circumstances of the surrender of the plaintiff’s agency contract invites or warrants the application of the Soldiers’ and Sailors’ Civil Relief Act. Frank v. Tru-Vue, Inc., D.C.Ill., 65 F. Supp. 220. The claim of the plaintiff is necessarily bottomed upon the alleged agreement to reinstate and its breach by the defendant. And in this court’s estimation, neither the meaning of the agreement nor the significance of its breach is modified by the intervening military service of the plaintiff. That is merely an interlude whose imminence and termination are said to have constituted, the former the occasion of the agreement, the latter the precipitation of its breach. Accordingly, if there were a present and practical necessity for a final announcement upon the point, the motion would be granted and the criticized language stricken.
An order is being entered accordingly.