Eskimo Pie Corp. v. Whitelawn Dairies, Inc.

284 F.Supp. 987 (S.D.N.Y. 1968)

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Nature of the Case

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Facts

P and D entered into the Package Deal. D granted to Whitelawn (P), an ice cream manufacturer, the right to manufacture certain ice cream products bearing 'Eskimo' wrappers and labels and to SAS (P) the right to purchase such Eskimo branded products from Eskimo or an Eskimo-authorized manufacturer for sale in the New York City Metropolitan Area. The deal called for Ps getting non-exclusive right to purchase and sell the products. Sometime around 1963, D sold its Eskimo-branded products to others in the New York City Metropolitan Area and entered into agreements with others to manufacture and sell their products. Everyone claimed a breach of contract. A threshold question arose out of the meaning of the word 'non-exclusive.' Ps sought to offer parol evidence with respect to its meaning. P contends that the word 'non-exclusive' meant that D would have the right to continue existing licenses granted by it to others in the New York City Metropolitan Area and to grant new licenses to national companies but not to grant licenses to so called 'independent' companies unless required to do so by order of a court or governmental agency, and that D itself was not to compete with Ps in the sale of Eskimo branded ice cream products. D argues that such evidence is barred by the parol evidence rule, and seeks preliminary rulings before trial is commenced. All parties agree that the Package Deal represented an integrated agreement.