*1 handled, faster, hand, mer- On carefully pro-, the other several of that handled, carefully testants and that the testified as to ability chandise is their to handle present shipments, shipper pay all C.O.D. service and the off fact that áii additional competitor C.O.D. go because merchandise has to would reducé their testimony income. Their they shows that satisfactory “Q. handled Has ready, willing, are and able to any render been satisfied. A. We Schroder? required service, they and that are satis- any quicker shipments “Q. Would factorily rendering service to meet the re»- Kentucky through through than Indi- going quired shippers needs of all terri the. and Ohio (The Indiana ana and Ohio? tory.- ._ than miles farther twenty-eight route Well, don’t route) I Kentucky A. We have found no substantial evi We as- or not. it would be know whether inadequacy present dence of service quick- direct route would be sume a more the existence of a demand for additional public service er.”. based on convenience (cid:127) necessity. Accordingly, we are of the following questions asked the He was opinion Department erred in is following answers: and made the suing the certificate and circuit entirely satis- present “Q. The service court in confirming erred the action of ’the factory? Yes. A. Department. leaves, thing you “Q. That so The judgment is reversed with directions A. cheaper rate? for, is a are here that the cause Departr be remanded to the hauled anything would like to have We ment of Motor Transportation proT cheaper. ceedings consistent opinion. with this I any motor “Q. Do other carriers call on you your soliciting in Louisville business? do, they quite
A. Yes number.
“Q. Express Cyn- Ecklar-Moore Has (one of the protestants)
thiana ever so- your business? A.
licited Ecklar-Moore
hauls a deal of for us merchandise can’t serve.
those towns that Schroder CERESIA v. MITCHELL et al. “Q. they settle their Do C.O.D.’s all you? right with A. We well Appeals Kentucky. Court of satisfied.” 15, 1951. June Huey, Hay further testified that He Rehearing Denied Oct. D., Doyle protestant), C. & (another We business. are of the had solicited his testimony of this witness
opinion that pro- additional natural desire for
shows a
fits, refutes the contention that inadequate or that present service need for additional service.
there only other evidence introduced testimony was the applicant of two employees. They as to its own testified ability applicant’s to render service intimated required, and consid- inadequate present service because ered requested shippers ap- them-to several although shippers, permit such
ply for. request. no reason turn, gave *2 n March, Sales consummated in .a including business, $10,000
price will, an additional equipment $1- *3 hand, 'a goods on and in 650 for stock the a$50 business the site the lease of of for right the period with ten-year month for a agree- purchase The of lease renewal. woman, law- by drafted ment were Woodward, Greenville, Jones, T. O. yer, who had done similar Mr.' work for Bartlett, Hobson n & Owensboro, McCarroll, Ap- period many.years. Ceresia over of appellant. for litigation parently, neither side to this con- Greenville, Bratcher, Arthur T. W. D. lawyer sulted until Mr. Ceresia returned appellees. Her, City, for Central September, an vacation from extended in. 1947, health, restored his in and' found MILLIKEN, Justice. prospered had in greatly- former business en- appeal judgment from a is an This the hands of its owners. The new fact Ceresia, appellant, who the joining the appellees conducted the business in the below, competi- engaging in defendant yard leased in of Mr. the back appellees in business tion home, driveway- Ceresia’s which used the Muhlenberg County in City Central house, and, along ran the side his be- -of of provisions a contract violation of great growth cause of the the business injunction The sale. effectiveness driveway used more than had-Mr. Cer- was made coextensive with the term of a esia, led all to a series of irritations which expire 31, ,1957. lease which March will, :reentering bred led ill to Mr. Ceresia vegetable appellant, Ceresia, wholesale fruit and business Lorenzo City, finally in man, Central elderly early seventies, in his led the in- and had litigation September; operated of this vegetable in wholesale fruit stitution ' (cid:127) , business 1949. City in Central and adjoining ter- ritory many years. He has little for- Ceresia Mr. testified that he renounced equivalent mal education-about he had made with the Mit- years school-speaks grade Eng- two in chells when he Septem- returned in home yet brokenly, prospered lish in the land ber, 1947, acquiesced- they therein, adoption. hand, On his the other the that he was too ill to know what he was appellees family partnership are a com- doing when made prised veteran, young of a war his sister March, 1947, them in but there is no evi- pleads and his father. Mr. Ceresia that dence record a tender to the Mit- they purchased defrauded him when $10,000 chells of or all of the received his business but there is no evi- purchase price from them as the of the bus- charge. his dence sustain iness, and he continued accept monthly rental under the lease. by testimony The situation unfolded ailing reveals Mr. Ceresia as an contract sale widower and the lease are drawn, with a young ineptly son and thriving many busi- contain Undoubtedly, by ness. which influenced the state courts would not enforce and skilled lawyers include, yet. his health he wished to sell the business crude n ly as a going cover gist concern order to business realize its transaction worth, full by and had parties made consummated at least two un- litiga to this successful tion. efforts to sell Mr. alleged the business on While Ceresia has fraud comparable terms, negotiations general terms before overreached) start- he was ed between him that he was appellees. and the too to know what he was Alex do iff Mitchell, Jr., a veteran, young ing signed-the war when he lease, contract and he,never worked for Mr. six weeks be- that understood' the contents of fore approached Mr. Ceresia writings about signed which he. had until he purchasing the business. The upon sale them was read return his home in Sep relatively physical
tember, 1947, does assets evidence adduced transferred-was knowledge Without de small. his business not bear- his contentions. From out lease, re scope of sale and chancellor confined tailing the contract portion under upon straint: shall confine 'ourselves fruit the re consider relevant to contract his activities them appellees by City granted vegetable sought Central lief expiration distinctly Muhlenberg County understood “It until chancellor: Bill to this of the term March and'agreed of the lease on Sale, conclusion Agreement and Contract and is We believe the chancellor’s *4 Of Section practicable in same in part just. the consideration and As stated of essential Contracts, 6, pages (Ceres- part Vbl. party of the first 1390 of Corbin on that the said Company, prevented from Publishing to barred and 499' West ia)' forever is of what any kind of business in 1951: engaging in kind, or his own character nature
soever competition restricting agreement “An person of other name or in the part name may to a perfectly reasonable as be partner in the silent him as a persons territory restric- of the included within the of Ken State Muhlenberg and County Will as the rest. of tion but unreasonable to and bar preventing in forever tucky. This the courts an enforce such in Muhlen- in business ring engaging invalid? from remainder part holding while the parties of Kentucky, of the County, say that the answer berg to It no service renders to also- extends Ceresia part, depends upon Lorenzo the contract first whether not Adminis children, Executors ‘Divisibility’’ his is a term his is ‘divisible.’ definition; reputation that has trators, general the invariable for has no bus in the Ceresia the by Lorenzo much with varies so -instead the term established Company City purposes Produce in subj and the the Central ect-matter involved iness of property part of the deci- an aid to its use either as valuable view that is a most of by virtue to under statement of results tends being bought or in the is' sion parties not said Sale. befog this Bill of real issue. the the part second parties of the sold .unto illegality, respect partial to “With City Produce Central of business Com: partial whether enforcement issue is real sold, conveyed also was there pany, but pub- possible to the quite injury without is cash, of paid in money purchase injustice .for to the lic and without Lor said and influence will good en- believed that such themselves. It is agree and now here does who enzo quite possible in' the forcement pow influence his to use all times at to If a majority of cases. seller whose busi- second parties of the in behalf er beyond good will not do extend ness venture this business to make part in order city promises limits Trenton success, and this perfect a of. .theirs open competing anywhere a business with- any other in if he had interest could not-do Jersey, in the New the restriction state n Kentucky, County, Muhlenberg in business greater than is is much reasonable. This county.” adjoining good refusing enjoin reason for or.in a Newark; doing business seller but broad language is too this While good for permitting it is not reason pal specifications be its -scope for its up competing open store within the lay- nevertheless, expresses in it, atable, same block Trenton. to transfer intention terminology many good “In a cases it was held that valuable most as-“a good'will itself no geograph and if the contract indicated bought under being that' property' line between reasonable un impor ical Sale.” Bill of by virtue reasonable, it was illegal ‘indiv-isibile’ and- of the busi good on placed tance Thus, seller-promised if a as whole. buyers borne no-t -minds ness anywhere England compete the to whole over one-half belief by our Out void, promised if he compete the was covered given $10;0'00'' partial England, in London or elsewhere will, the value element performance even possible enforcement in case the busi so for much ness had would throughout extended London. be reasonable restraint.” “In cases courts have held many section, In commenting on this Corbin void whole contract to 'be says: excess restraint was in objection “There is no first clause terms of what was and the reasonable herein, no restraint bearing in mind that indicated line of division. no should ever be as ‘reasonable’' described cases, how- In the best modern considered mo- ‘part plan if it of a to obtain. ever, the court has decreed enforcement nopoly.’ But are in.conflict the cases that against a breach has oc- defendant whose to,,be second clause are the ones curred within an area in which restriction followed. See the notes Professor Sam- reasonable, though even present uel Williston and the writer.in agreement imposed larg- the terms .Conn.Bar Jour. Thus, er and unreasonable restraint. Williston, “Professor Samuel who draft prom- purely of a seller local business who *5 Institute, ed 518 agrfees for the Section now open any- a competing ised not store 1948, with Beit, this. In a note on Beit v. prevented by where America has been 195, 135 161, Conn. A.2d 10 63 A.L.R.2d injunction running within a store 734, 40, says: 23 Conn.Bar ‘Í have In that he sold. same as one Jour. block concluded and have so stated in Section may it be difficult determine some cases 1660 of my the Revised edition of treatise boundary of rea- limiting what is the exact on spite Contracts in of the contrary rule restriction; but often such a deter- sonable stated in Section 518 of the Restatement question necessary. is not The mination Contracts, that in such a casé un against usually whether restriction is questionably legal part of this covenant fact done or is has in what the defendant * * * should part be enforced. If any threatening would be a reasonable and val- promised of the covenant anything criminal plaintiff id restriction. The always should seriously bad in itself the whole- cove permitted to show the actual extent of nant, not, whether in divisible form or good will that is involved should be unenforceable. But this is defendant has committed breach within ” the case.’ that extent. If a restriction otherwise rea- limit, quite possi- time it sonable no is See, also Hill v. Central West Public injunctive grant ble' for court to relief Co., Cir., 1930, Service 5 451; 37 F.2d Ed specific for a and reasonable time.” Mullin, wards v. 379, 220 997; Cal. 30 P.2d Metropolitan Ice Ducas, Co. v. Restatement of the Law of 291 Mass. Con- 403, 856; 196 N.E. tracts, 518, Fleckenstein Section follows the doctrine Bros. Co. Fleckenstein, v. 76 the whole contract 71 is and void A. N.J.L.3 . L.R.A., N.S., 24 91 where the restraint is in excess of agree- what is reasonable the terms of Thus, it will be seen that-two of the lead- no line ment indicate division. Corbin ing authorities on the law of contracts have provision prob- states that the Restatement concluded the current opinion trend of it ably was drafted was .because believed to in country favors by the enforcement weight authority. with the be in accord courts of the unquestionably legal parts of promise The section reads: “Where a in a covenant of the nature of the one bar. at restraint of bargain reasonable trade in a promise to it a has added stated C.J.S., Contracts, unreasonable As in 17 . restraint, promise “Generally, 244: the .former agreement is enforce- imposing § agreement the entire reasonably able unless restraint space limited in monopoly; public plan against policy, to obtain although but if full unlimit promise performance of a operation, in ed in regardless indivisible time of the restraint, involve terms would '-s-dreasonable nature occupation of the business or re nn illegal' p-romise-is 'tnd not enforceable (cid:127)strained.” im at insists In the restraint make uncon- case bar whole posed us upon, did not scionable. the-seller of the business So as record far before reveals, competitive position, of directly occupying the Mitchells affect the are still public, buyers premises. over took the leased because As we have comment- buyers heretofore, writings had ed where left the seller off. involved drawn, ineptly before' yet not been in the business made disclose the together purchase. “An in restraint intention to their transfer the business if, good on consideration its as trade reasonable will well as to lease subject'matter,' of the the nature conducted busiAess, parties and long the business. do the' situation So as Mitchells case, particular not invoke the circumstances of about which these complains disposed fair Mr. is such as afford aré not restriction them, the covenantee to protection to interests consider since we have concluded large with the that as to interfere the intention and not so hardship impose going along undue ¡public transfer a interests C.J.S., Con will. party on the restricted.” That our view being transaction, overreaching tracts, and no fraud or § apparent, approved .being we have Concluding supported ruling, chancellor’s ef parties was to manifest intention authority, in order the trend of modern con going business as a sale of the fect intention of manifest effectuate the business, we an established and as *6 cern parties. grant Mr. For us to chancellor ruling conclude that prays relief he in the circumstances exercise of his practicable just injustice on the Mit- case would work an how advancing that intention powers, in chells. expressed awkwardly it was ever judgment affirmed. parties. memoranda written provisions pleads that other Mr. Ceresia: CAMMACK, MOREMEN, J., J.,C. him requiring those contract dissenting. storage'room in large cold remodel to Mitchells, “to leased building MOREMEN, (dissenting). Justice and furnish radiator water install hot. is, believe, majority opinion we than him etc.,” have cost more coal, would beyond adventure the field the rental for period amount total power to expresséd heretofore have fulfilling cost of his years; five reform a contract. it that be so would these even consider to unconscionable thing courts of It been a common pro- that the He insists enforcing them. in order to equity reform contracts ex- and lease sale contract visions parties, press intent of the the true severable, he has instituted not proof was clear done this when have Muhlenberg Court to Circuit action that mutual mistake of convincing premises. He from the the-Mitchells oust of one fraud on the parties the whole trans- renounced states' part of the other party and mistake on the' Mit- September, that the action in’ not party did the instrument renunciation acquiesced in his chells express between them. the true premises as leased to vacate agreed also construed instruments Courts have another obtain they could soon fact, be, deeds mort- form of paid rent they have not 'that conduct of the gages, where the June, since demonstrates intended things mortgage. But these be a important note It is power reformation, done under upon the fulfill insisting Mitchells.are upon proper pleading proof, and only provisions that these ment of
365 " ' party Bud sought where a reform the the wicked and good. enforce the We were instrument, according and then .it enforce asked to illegal portion enforce the terms, to its after reformation. contract bymeans itself injunctive pow er, and we have enforced it after we have We have also cases severable whittled it down to conform to our notions contract contained both and invalid valid of decency. ofAll pleading this without provisions, out cast evil clauses and proof, (it without provisions, then enforced the seems to us) if the basis of legal practice. sound action did not do violence to the contract’s See Johnson McMillion, mutuality. v. pro- Ky. 707, these In cases the 199 S.W. 1918C, disregarded, L.R.A. visions 244 were ánd only the legal provisions enforced. presented A converse state fact CAMMACK,. J„C.- concurs in.this.dis- requested
here. We were to cast sent. out . .