Hamrick v. Acme Cigarette Service

GRIFFIN, P. J. In this action by plaintiffs-respondents, and cross-defendants, husband and wife, against defendants-appellants and cross-complainants for declaratory judgment under section 1060 of the Code of Civil Procedure involving the interpretation of and rights of the parties in an installation and service agreement, plaintiffs prevailed. The agreement involved (Exhibit 1) reads in part:

“In consideration of Acme Cigarette Service, . . . installing and servicing various cigarette vending machines in the undersigned’s place of business $125.00 Advanced Commissions and other valuable consideration, the undersigned agrees to, and does hereby, assign and grant to Acme the exclusive right and privilege of selling cigarettes at said premises for a period of one year commencing with the 4th day of Sep[342]tember, 1953, and thereafter from year to year unless sooner terminated by written notice sent registered mail by either party to the other not later than sixty (60) days prior to the expiration of the term, or any extension hereof; and during said period, further agrees not to permit any person, firm or corporation other than Acme to sell, trade in, or offer cigarettes for sale at said premises. The undersigned further states there is no other legal agreement in effect covering the sale of cigarettes at said premises.

“Acme agrees to maintain and service said machine (s) during said period and shall have full access to the undersigned’s place of business during reasonable business hours for that purpose. Acme shall pay to the undersigned its prevailing rate of commission, subject to the express understanding that in the event of any change in the cost of cigarettes to Acme, or any change in or imposition of any tax on the sale of cigarettes, or in the ownership, use or operation of cigarette vending machine (s), the commissions to be paid by Acme may be changed accordingly without otherwise affecting this agreement, upon written notice to the undersigned of any such change. The undersigned agrees that if he shall sell and/or transfer his interest in the business during the term, or any extension, hereof, he shall, in that event, require that as a condition of said sale and/or transfer, the purchaser and/or transferee thereof shall accept this contract for the unexpired portion thereof and assume all of the terms, covenants and conditions thereof. In the event of a breach of this agreement, the undersigned agrees to pay all costs and attorney’s fees which may be incurred by Acme by reason thereof. This agreement sets forth the complete understanding between the parties and no representations were made not appearing herein.