This is an appeal by the defendants from an interlocutory decree whereby the objections and exceptions of the defendants to the master’s report were overruled, and their motion to recommit was denied, and the master’s report was confirmed. This is also an appeal by the defendants from a final decree restraining and enjoining the defendant Bouley for the period of two years from the twenty-ninth day of September, 1928, from disclosing the name or names of any customers of the plaintiff to the defendant McGowan or to any of his employees, agents or servants or any other parties; from soliciting, calling for or collecting any wet wash within certain territory described
The bill of complaint was brought by the plaintiff, as the proprietor of a wet wash business, against Eugene P. Bouley, a driver formerly employed by him, and Walter H. McGowan, the proprietor of a towel supply and laundry business, by whom Bouley was employed, to enjoin the alleged violation by Bouley of a contract made by him with the plaintiff whereby Bouley agreed not to solicit or disclose the plaintiff’s customers, or to do anything to injure the plaintiff’s business after leaving his employ; and to enjoin McGowan from continuing to receive the laundry of the plaintiff’s customers; and for damages against both defendants.
The evidence is not reported. The facts found by the master disclose that the defendant Bouley entered the service of the plaintiff and signed the contract referred to in the bill of complaint on February 8, 1923, and that he left the plaintiff’s employ in September, 1928. By the terms of the contract it was agreed that the employment was to be considered as an employment from week to week and that it might be terminated- by notice of one week by one party to the other, or by Brannen without notice and without cause of action on the part of Bouley except for wages then earned if Bouley should not perform his duties faithfully. By the terms of the contract “Said . . . Bouley agrees that whenever he leaves the employ of said Brannen for any reason, he . . . will not directly or indirectly for the period of two years from the time of leaving such employ solicit for himself or for any other person any of the laundry business or' customers of said Brannen and will not attempt in any manner whatever to procure for himself or for any other person any of the established line of laundry customers of said Brannen; it is an essential feature of this contract that such laundry business in which the said Eugene P. Bouley shall work for said Bran
At the hearing the plaintiff made claim to the following places under the contract: “All of the town of Brookline; part of Newton including Dudley Road, Newton Centre, Station, Cypress Street and Centre Street; all of Brighton, Allston, Watertown and Cambridge, Boston Proper as far as the Public Garden and Broadway; all of Roxbury; all of Dorchester as far as the four mije limit from the Laundry of the complainant will cover; Namely, as far as Centre Avenue, Washington Street as far as Walton Street, Milton Avenue as far as Ashmont Street, Morton Street as far as the Morton Street Station on N. Y. N. H. & Hartford Railroad; Blue Hill Avenue as far as Fessenden Street, West Roxbury including Canterbury by the Mount Hope Cemetery, Clarendon Hills, Roslindale, Peters Hill, Highland Station on N. Y. N. H. & Hartford Railroad and as far as Corey Street and Wall Street; all of Jamaica Plain and the streets on the radius in between these points”; and disclaimed such places as South Boston, Charlestown, Somerville, Beacon Hill section of Boston, which are within the four-mile limit,
Without discussion, we think there is nothing in the contention of the defendants that the plaintiff should not be permitted to prosecute his suit because he is a member of an organization whose members are engaged in the wet wash laundry business and would like to see the plaintiff prevail.
During the hearing before the master the plaintiff offered to show that in addition to Bouley’s personal solicitation he and McGowan combined to attack the plaintiff’s business not only personally but through the instrumentalities of one Dudley, one Smallett, one Lawson and one McKinnon. The master finds that these persons were familiar with what Bouley was doing and either aided or encouraged him; that Smallett received some of Brannen’s customers for bringing Bouley into contact with McGowan; that Dudley was constantly in touch with Bouley, understood what was going on and was thoroughly in sympathy with it; and that McKinnon, under Bouley’s direction, obtained the customers. With this background of fact, in the absence of them as defendants, the plaintiff, subject to the objections of the defendants, offered and the master received statements made by McKinnon, Dudley, Lawson, and Smallett, tending to support the contentions of the plaintiff above stated. These statements were received by the master on the assurance that an amendment of the bill would be offered, if necessary.
Subject to the objection of the defendants, one Blakeney, a route foreman for the plaintiff, was permitted to testify that he visited customers who had been formerly dealing with the plaintiff and asked them why they refused to continue to deal with him; that some said it was because they were friends of Bouley; several that they were going to give their laundry to Leaders Laundry; and others that it was because they were friends of McKinnon. The defendants asked that this evidence be struck out. One of the plaintiff’s customers was a concern called the Unity Lunch, in Brookline. Subject to the objection of the defendants, the master admitted testimony of witnesses of the plaintiff of talks which took place at the Unity Lunch room as disclosing the reason the proprietor was “not sending, or continuing to send . . . [the] laundry work to Brannen’s.” The above evidence, and similar testimony which was offered and received against the objection of the defendants, were admissible as declarations accompanying acts of refusal to deal with the plaintiff within the principle of Elmer v. Fessenden, 151 Mass. 359, 361, Weston v. Barnicoat, 175 Mass. 454, and Hubbard v. Allyn, 200 Mass. 166, 174, and were not merely narrative statements or declarations which related to past events.
Interlocutory and final decrees affirmed with costs.