This is an appeal from a final judgment dismissing plaintiff’s complaint after trial. The defendant rested at the close of plaintiff’s case.
Plaintiff sought an injunction restraining defendants from soliciting orders from any of plaintiff’s customers or customers of plaintiff’s predecessor in interest, and sought an accounting and damages.
On September 23, 1947, plaintiff’s predecessor, Faultless Fuel Oil Co., Inc. (herein Faultless) and defendant Erick Trenck entered into a written agreement, terminable at will, whereby Trenck agreed to deliver oil for Faultless. The contract could be assigned by either of the parties and it was provided that, at the termination of the contract, Trenck would not solicit the customers of Faultless, nor divulge the names of its customers.
On March 6, 1961, by written agreement Faultless gave plaintiff an option to purchase certain property and property interests owned by it. The document provided that at the closing Faultless would transfer to plaintiff its heating oil accounts and burner service contracts, and “all such business with these [oil] accounts including any and all contracts it may have governing the same.” The option given was to expire on April 3, 1961, and it was stated “ Consummation of the sale hereunder shall be effected by proper bills of sale, assignments and such other instruments and papers as may be necessary to effect the same by law ”. The option if exercised was to constitute the contract of sale and plaintiff, as purchaser, was to be under no obligation to any employee or agents of Faultless.
Plaintiff in its complaint, alleging the facts stated above, asserted it was the assignee of the Trenck contract, that Trenck during its years of business with Faultless had learned the names of its customers, and that Trenck and the other defendants individually and as members of defendant Q. N. S. Fuel Oil Corp. (herein Q. N. S.) had solicited and obtained certain customers of plaintiff and plaintiff’s predecessor.
The answer herein, after general denials, except admitting the execution of the 1947 agreement between Trenck and Faultless, pleaded affirmatively that such agreement was terminated November 30, 1960, that such agreement was the result of coercion and that the other individual defendants and Trenck were employees of Faultless without access to any secret lists or files.
*900At the trial plaintiff produced only one witness, its sales supervisor who, by his own admission, lacked knowledge of certain essential facts. The sales agreement was offered and received in evidence and it was testified the option had been exercised and the entire stock and ownership transferred. The witness did not know of the existence of the Trenck agreement at the time of sale, despite the fact that plaintiff had the right of full access to the books of Faultless, and it was not until September, 1961, that plaintiff learned even of the existence of such agreement, and November 17, 1961, when it obtained from Bernstein, as “ president ” of Faultless a “ nuno pro tuno ” assignment of the Trenck agreement. No proof was offered that the Trenck agreement was in existence at the time the option sales agreement was entered, or at the túne the option was exercised. There was no proof that Bernstein had any authority to execute the assignment of November 17, 1961, since plaintiff had purchased the stock and assets of Faultless many months before. Bernstein was not called as a witness and there was no competent proof that Faultless remained in existence and that Bernstein continued as its president. There was no proof of how long defendant Trenck had serviced the 11 accounts which he admittedly was servicing, no proof to show the other individual defendants did not have a right to, and did not, procure independently the other customers plaintiff allegedly lost, and no proof the other individual defendants even knew of the existence of the 1947 Trenck agreement. No closing statement, bills of sale or assignments were offered. The plaintiff’s case rested almost entirely on speculation. Here speculation of wrongdoing will not substitute for the required proof which was insufficient to warrant granting the drastic relief of injunction. I
Accordingly, the judgment appealed from should be affirmed, on the law and the facts, for failure of proof, with costs to the respondents.