Ernest A. TIMMONS, Plaintiff,
Edward CROPPER, Defendant.
Robert D. Thompson, Jr., Georgetown, for plaintiff.
John E. Messick of Tunnell & Raysor, Georgetown, for defendant.
[40 Del.Ch. 30] SHORT, Vice Chancellor.
On April 14, 1959 plaintiff and defendant entered into the following written agreement:
'This Agreement, made and concluded this 14 day of April, 1959, by and between Ernest A. Timmons of Delmar, Delaware, hereinafter referred to as Timmons and Cropper's of Selbyville, Delaware, hereinafter referred to as Properietor, Witnesseth:
'In consideration of the payment to proprietor by Timmons of the sum of One Dollar it is agreed:
'Proprietor leases unto Timmons appropriate space for the operation of automatic Amusement equipment upon premises located Church & Main St. Proprietor also agrees to furnish electric outlets there-fore
and to permit operation of such equipment during usual business hours and under usual conditions without hindrance.
'It is agreed that the following equipment is to be installed:
'All Pin Ball Machine on 50-50 basis.
'All licenses to paid for out machines.
'Proprietor grants unto Timmons the exclusive right to operate automatic Amusement machines upon the premises during the full term hereof, and no other person, persons, or corporations shall have the right to operate the same during the full term hereof, including the Proprietor, nor shall any other commercial Amusement system be operated on said premises during said term.
'Title to all equipment placed by the undersigned, shall at all times be and remain the equipment of Timmons and Proprietor agrees that Timmons may remove the same at anytime during the term hereof.
'In the event of any breach of this agreement by the Proprietor, Timmons shall have the right to enjoin the Proprietor from operating any other equipment in the said premises by an [40 Del.Ch. 31] appropriate action in Equity, the Proprietor agreeing that jurisdiction might vest in Equity without his objection and as a cumulative right, it is further agreed that as liquidated damages and not as a penalty, upon such breach, Timmons shall be entitled to and shall, at time of breach, receive from Proprietor a sum equal to the average weekly share of Timmons ...