178 S.W.2d 148 | Tex. App. | 1944
This appeal is from a judgment permanently enjoining appellants in the respects hereinafter disclosed. The material facts leading to the litigation are these: The I. Reinhardt Son local insurance agency, in business in Dallas for fifty years prior to the transactions here involved, was owned ninety per cent. by the legal representatives of the estate of Chas. Tucker, who died in May, 1942, and ten per cent. by J. L. Cottingham. Effective September 1, 1942, the owners sold the agency to appellee; the contract of sale recited that, in consideration of $51,000 cash paid by appellee, the owners transferred and conveyed to him (1) the exclusive property right in and to expirations of all policies of insurance then in effect (Sept. 1, 1942), written by or through said agency as local recording agent, or otherwise, or obtained by it upon applications submitted to or by insurance companies represented by the agency, whether such business be handled or controlled as brokers, agents, or otherwise; (2) the exclusive property right to control and solicit renewals of all said policies in force (Sept. 1, 1942); (3) all books, records, correspondence, copies of policies, daily reports, and all other data of the agency, and the exclusive right to utilize the same in connection with the operation of an insurance agency; (4) the good will of the said I. Reinhardt Son agency, together with all benefits naturally incident thereto; (5) the exclusive right to use the name I. Reinhardt Son in connection with the operation of an insurance agency, including, under subdivisions (6), (7) and (8), *149 certain properties of negligible value, such as 1941 model Ford automobile, furniture, fixtures and office equipment, and the assets of a defunct corporation.
After the sale, Cottingham remained with the agency as an employe until October 1, 1942, when he resigned, and H. Whitney Barham, who for some time prior to sale had served the agency as an employe, continued until about November 1, 1942, when he resigned; and immediately thereafter, he and Cottingham formed a partnership styled Cottingham Barham, for the purpose of conducting the same character of business as that conducted by the I. Reinhardt Son agency.
Appellee instituted the instant suit, alleging the facts just stated, and further that, as soon as the newly formed partnership began operations, the members thereof, in violation of express provisions of the contract of sale, solicited policyholders for renewals of policies existing on the books and records of the I. Reinhardt Son agency Sept. 1, 1942; that by reason thereof had caused cancellation and renewal of such policies, and if permitted to continue such wrongful course of conduct, appellee would suffer irreparable damage — not only in the loss of premiums and commissions but also to the good will of the Reinhardt agency; that appellee had no adequate remedy at law, wherefore, sought appropriate injunctive relief.
After appellants joined issue, the court heard evidence and entered judgment against Cottingham individually and the partnership of Cottingham Barham (no relief being granted against Barham individually), directing Cottingham and the partnership to refrain from soliciting the renewal of such policies; also from soliciting and thereafter renewing any such policies and from in any manner interfering with appellee's exclusive right to solicit such renewals, to which appellants excepted, gave notice of and duly perfected this appeal.
In response to the request of appellants, the court filed findings and conclusions, including therein the facts set out in the statement heretofore given, and, in addition, found that appellants, operating under the name of Cottingham Barham, immediately after forming the partnership, began soliciting business from customers of the I. Reinhardt Son agency, specifically solicited renewals of policies in force on the books of said agency as of the date of appellee's purchase, and renewed same in the Cottingham Barham agency, to appellee's damage. These findings, being sustained by evidence, are adopted as our conclusions on the issue.
The court concluded as a matter of law, that unless the injunctive relief sought was granted, appellee would suffer irreparable damage in the loss of business, and to the good will of the Reinhardt agency; the court said: "I conclude finally that the plaintiff (appellee) is entitled to a perpetual injunction restraining defendant Cottingham and the partnership of Cottingham Barham from soliciting the renewal of any insurance policy existing upon the books of I. Reinhardt Son as of September 1, 1942, from soliciting and by reason of such solicitation renewing any such policy, and from interfering in any manner with the plaintiff's right to solicit the renewal policies existing on the books of the Reinhardt agency as of September 1, 1942."
Seemingly, appellants contend that the provisions of the sale contract giving appellee the exclusive right to solicit renewals of policies issued by the Reinhardt agency existing September 1, 1942, are void because in conflict with the Anti-Trust Code of the State, Vernon's Ann.Civ.St. art.
The authorities cited by appellants sustain their contention, if the contract under consideration offends the anti-trust law in the respects mentioned, but we do not think so, as the former owners of the Reinhardt agency were not required by any provision of the sale contract to abstain for any period of time, or in any given locality, from entering the local insurance agency business in competition with appellee or any of the other 150 insurance agencies doing business in the City of Dallas. Appellee does not complain of the fact that Cottingham, or the firm of which he is a member, has engaged in a competitive business; his complaint is that, in violation of explicit provisions of the sale contract, by soliciting and renewing policies in existence upon the books of the Reinhardt agency Sept. 1, 1942, appellants were recapturing and *150 taking from appellee property, and depriving him of property rights purchased, for which he paid a substantial consideration.
The chief asset purchased by appellee from Cottingham and other owners of the agency, was the exclusive property right in and to the expirations of all policies issued by the Reinhardt agency in force on Sept. 1, 1942, the exclusive property right to control and solicit renewals of said policies, all books, records, correspondence, copies of policies, and all other data pertaining to said agency, the good will of said agency, together with all benefits naturally incident thereto and the exclusive right to use the name of the agency. The most valuable of these assets, in our opinion, was the accumulated data pertaining to the 5,000 policies in force at the time of the sale, coupled with the exclusive right, as against the insurance companies, to solicit renewals and place same in any company of the agency's choosing. Obviously, it was the acquisition of these valuable assets that moved appellee to pay the owners $51,000 in cash for the agency. Clearly, we think, appellee was entitled to be protected against efforts on the part of either Cottingham or the partnership of which he was a member, to recapture and take from appellee the very property and property rights sold, and for which he paid the large cash consideration.
The case of Kerr Elliott v. Green Mountain, etc., Ins. Co.,
In Wood v. Pender-Doxey Grocery Co., 1928,
As heretofore shown, owners of the Reinhardt agency conveyed not only the *151
expirations and the exclusive right to control, solicit, write, and place renewals of all policies written by the agency and in existence on Sept. 1, 1942, but the good will of the agency as well, together with all benefits naturally incident thereto, and this carried an implied covenant that the former owners would do nothing in derogation of the grant. Doctrine to this effect was announced by the El Paso Court of Civil Appeals in Sheehan v. Sheehan-Hackley Co.,
Appellants also contend that the decree is unenforceable because it failed to name those holding policies in the Reinhardt agency on Sept. 1, 1942, whom appellants were forbidden to solicit for renewals, contending that, not being able to remember the 5,000 policyholders, they might unwittingly violate the injunction.
The secret policy information accumulated at great expense by the Reinhardt agency, and its exclusive right to use same, was one of the main assets sought to be protected by the instant suit; hence the court, seeking to protect the rights of appellee in the respects mentioned, would have defeated that purpose by requiring the public disclosure of such information. Cottingham had been connected with the agency for nearly five years prior to the sale, and Barham had been with the agency as an employe for a considerable length of time before his resignation; in view of this situation, we do not think it unreasonable to assume that these gentlemen were sufficiently familiar with the business of the agency and its clientele as to avoid violating the injunction. The decree enjoined Cottingham and the partnership of Cottingham Barham from soliciting and renewing policies existing in the agency on Sept. 1, 1942; any one of these policyholders could have owned uninsured property, or had a policy or policies in either of the other insurance agencies doing business in the City of Dallas; in either case, appellants were free to solicit and consummate such business. So, we conclude that, if appellants exercise ordinary care to avoid violating the injunction, no occasion will arise for its violation, either wittingly or unwittingly.
Appellants also contend that, not being a party to the sale contract, Barham should not have been enjoined; that is, the partnership of Cottingtham Barham should not have been enjoined. If the injunction had been leveled at Cottingham alone, without including the partnership, the decree, in our opinion, would have been ineffective, as Cottingham, acting through the partnership, if so inclined, could have consummated the prohibited acts. In order to render the decree effective, we think the court correctly enjoined the partnership of Cottingham Barham. A case in point is that of Santa Monica Ice Cold Storage Co. v. Rossier, 1941,
We have carefully examined all points of error urged by appellants, and finding no reversible error, the judgment of the court below is affirmed.
Affirmed.