Hertz Driv-Ur-Self Stations, Inc. v. Schenley Distilleries Co.

BRAY, J. From a judgment in favor of plaintiff in the sum of $11,379.80, defendant appeals.

Questions Presented

1. By the 1945 and subsequent schedules, was the requirement of purchase by defendant abrogated?

2. Was there an anticipatory breach of the contract by plaintiff ?

Facts

In 1941 the parties entered into a written agreement by which plaintiff leased to defendant over a period of years, trucks, tractors and trailers “described in Schedule A, attached hereto, together with any additional Schedule A’s attached hereto, which are made a part hereof by reference thereto the same as if rewritten at length herein . . . Customer agrees to pay to Hertz the rental stipulated herein, and upon the terms and conditions in the said Schedule A, to[756]gether with any other Schedule A’s attached hereto, and upon the additional terms and conditions in this instrument contained.' ’ Schedules were to be added from time to time. Schedule A was to provide the fixed rental charge plus a mileage charge. Expressly recognizing that the cost of gasoline, license fees or taxes might fluctuate during the life of the agreement, it provided that if the average cost thereof during any month decreased or increased 20 per cent or more from the present cost, the amount of such increase would be charged defendant as increased rental while the amount of decrease would be credited defendant. Either party on notice could cancel the agreement on any anniversary date. If defendant cancelled then it agreed to purchase the vehicles then covered by the agreement upon the basis set forth. If plaintiff cancelled, defendant had the right to purchase.

The first Schedule A, executed on the same date as the agreement, listed only one vehicle and provided: “In the event customer shall elect to cancel this agreement with respect to the above listed vehicle, the customer shall not be required, but’shall have the right to purchase the vehicle listed above ..." (Emphasis added.) February 2, 1943, a new schedule was added “in addition to” the first, and referred to two vehicles different from the one in the first. February 6, 1945, there was added the schedule upon which defendant relies. It provided that it “shall supersede any previous Schedule A" and described four vehicles (three of which were those described in the first two schedules) and provided: “With respect to the above listed vehicles” that, in the event of cancellation as provided in the agreement, “Customer shall not have the right to purchase said vehicles, except by consent of Hertz ...” (Emphasis added.) March 18,. 1946, another Schedule A referring to two vehicles (one of which was included in the previous schedule) was signed “in addition to" any previous schedule. October 23, 1946, with the same notation, another schedule was signed listing an additional vehicle. January 13, .1947, appears another schedule also “in addition to any previous Schedule.” This lists six vehicles, none of which appear on any previous schedule. It is these six vehicles plus one listed in the schedule of March, 1946, which defendant was still using and which the court found defendant was required to buy. All "schedules provided that insurance premiums and gasoline prices shall be as stated in the schedule rather than as stated in the contract.