74 So. 58 | Ala. | 1917
— The equity of appellee’s bill is to specifically enforce a contract set out in the bill by, injunction, or, more definitely speaking, to enjoin breaches of this contract. The prayer of the bill is that: “Upon the final hearing of this cause your honor will make and enter a decree permanently enjoining respondent from the violation of said contract during the life of the same, arid permanently restraining respondent from delivering over to dry-cleaning and dyeing establishments other than complainant the cleaning and dyeing work obtained by it, which under said contract, respondent is bound to turn over to complainant.”
The substance of the contract was that appellee was to establish in Birmingham, Ala., a dry-cleaning business and plant, and that five laundry companies in the city should not for a period of ten years engage in the dry-cleaning business, and that appellee for the same period should not engage in the laundry business in Jefferson county, Ala.; that the five laundry companies should deliver to the dry-cleaning company all dry-cleaning work which they received from their customers, and that the work should be done by appellee and returned to the offices of the laundry company from which it was received, to be by the latter returned to the customers; that the laundry company
It is alleged that the laundry companies, including appellant,, each advertised the fact that appellee did its dry-cleaning business, but that appellant has recently breached, and continues to-breach, its contract, by refusing and failing to deliver the work so collected by it from its customers to complainant, but has delivered and continues to deliver the work so collected by it to other dry-cleaning companies, and allows such other dry-cleaning companies to advertise to the public that appellant is collecting work for them.
The bill was demurred to on the ground that the contract set out therein, and which is sought to be specifically enforced by injunction, was void because in restraint of trade and because it tended to create a monopoly in the dry-cleaning and laundry business in Jefferson county, Ala. The demurrer was sustained to the original bill, but the bill was subsequently amended. The reporter will set out the amendment. The demurrer was re-interposed to the bill as amended, and was overruled; and from the decree overruling the demurrer, appellant appeals.
Doubtless there is some, if not much, conflict in the authorities, text-books, and decisions of America and England as to the extent to which courts of equity may or should go to restrain by injunction breaches of contracts in partial restraint of trade. Mr. High, in his work upon this subject has gone through three distinct stages of transition, and states the three doctrines announced in the development of the law. — Volume 2, § 1167.
The doctrine prevailing in this state may be found in the Alabama cases above referred to, in the authorities therein cited, and in the notes thereto when reported in American State Reports and Lawyers’ Reports Annotated. Some of the propositions as settled by this and other courts may be summarized as follows:
The true test was said by the great Tindal, C. J., to be: “Is the restraint such only as to effect a fair protection to the interest of the party in favor of whom it is given, and not so large as to interfere with the interest of the public.” — 7 Bing. 735.
The doctrine as to contracts in partial restraint of trade was. thus summed up by Anderson, J. (now Chief Justice), in the opinion in Flowers, et al. v. Smith Lumber Company, 157 Ala. 510, 511, 47 South. 1022, 1023: “There are a few instances, when contracts have been upheld by the courts, hotwithstanding they had a tendency to restrain trade, such as sales of a stock or business and the good will of the vendor, with an obligation not to engage in a similar business or ealling in the same locality. Contracts of this kind have been upheld and enforced upon the theory that they did not generally, but only partially, restrain trade, and only to the extent of protecting the purchaser in the employment and use of the business purchased, and which was
This doctrine has been steadily maintained, down to the present time. — Seymour v. Delancey, 6 Johns. Ch. (N. Y.) 222; Ellis v. Burden, 1 Ala. 458; 2 Story’s- Equity, 736-42. “The question is, not what the court must do, but what the court may do, under the circumstances.”
There are both English and American cases in which contracts to render personal services requiring peculiar and particu
The leading case in this state on the subject is that of Iron Age Publishing Co. v. Western Union Telegraph Co., 83 Ala. 498, 3 South. 449, 3 Am. St. Rep. 758. The bill in that case sought to enjoin the telegraph company from delivering Associated Press dispatches to other newspapers in the complaint named, because of the covenant in a contract not to so deliver. A demurrer to the bill was sustained by the trial court, and the ruling of the trial court was by this court affirmed; and in the opinion many, if not all, of the American and English authorities were reviewed on the subject. Justice Somerville, in reviewing the cases, thus concludes and what is said there is, we think, apt and conclusive here: “How, it 'may be asked, is it practicable for the court to compel the complainant to perform personal services, as agent and correspondent of the Associated Press at Birmingham, which it has contracted to perform from year to year, under this agreement? We have seen that the duty involves the exercise of special skill, judgment, and discretion, being intellectual as well as mechanical in its character. These duties are also continuous in their nature, and of indefinite duration. There can be, as we
“This might involve the frequent necessity on the part of the court of hearing complaints from the defendant charging the complainant with a breach of its duties, or from the complainant arraigning the defendant for contempt for a violation of the injunction. There would thus be no end to the number of occasions when the court might be called on from year to year to say whether the complainant has performed the duties in question faithfully and efficiently, so as to have kept the injunction in force, or negligently and unskillfully, so as to justify its breach. For these reasons, the rule is that ‘equity will not enforce the performance of continuous duties involving personal labor and care of a particular kind which the court cannot superintend.' ”— 83 Ala. at page 511, 3 South, at page 455 (3 Am. St. Rep. 757).
How is it possible for a court to specifically enforce the contract in question ? How may it compel dozens of drivers of laundry wagons to solicit and gather up the soiled clothes and linens of thousands and thousands of people, and to carry all of those to be cleaned by the dry process, to appellee, and compel appellee to clean them and deliver them back to appellant, and then compel appellant to collect from the customers the prices fixed by appellee, and to remit 75 per cent, thereof to appellee? The answer of appellee is, by enjoining appellant from delivering the goods to other companies to be dry-cleaned. This might have the effect of preventing, rather than enforcing, performance. Moreover, we are not sure that the performance of this contract will ■ not tend to injure the public. The substance and effect, if not the object, of this contract, was to prevent competition in the business of cleaning, both wet and dry, so far as the parties thereto could do so. It may be true, as alleged in the bill, that there are other companies engaged in Birmingham in the laundry business and the dry-cleaning business, and that there is competition, and no restraint of trade, in this field. If so, it is not by virtue of this contract sought to be enforced, but in spite of it. It has done what it could do to prevent competition in the dry-cleaning business; it agrees that, so far as the parties are concerned, the dry-cleaning business shall be done
It follows that the demurrer to the amended bill should have been sustained.
Reversed, rendered, and remanded.