163 Mo. App. 546 | Mo. Ct. App. | 1912
Lead Opinion
On and prior to the 14th day of April, 1911, the defendant was engaged in the produce business at Rogersville, in Webster county, this state, a small town, unincorporated and located on the St. Louis & San Francisco Railroad. On • that day, by written contract, he sold his business to plaintiff herein, for the sum of $600. The contract contained the following provisions: ‘ ‘ The said O. H. Medley for and in consideration above mentioned hereby agrees not to engage in the produce business at Rogersville, Missouri, for a term of five years from the 22d day of May, 1911. ’ ’ After the execution of the contract, plaintiff took charge of the business and was conducting the same at the time this suit was commenced. About a month later defendant purchased a country store at Henderson, also an unincorporated place, about, one and one-half miles north of Rogersville, and engaged in the business of buying, shipping and dealing in produce at that place, and this suit was instituted by plaintiff to enjoin defendant from conducting said business. The case was tried on an agreed statement of facts, which with the contract, constituted all the evidence in the case.
By the agreed facts it appears that the town of Henderson is not on a railroad and has no postoffice, but its mail is delivered by rural route from Rogers-ville; that defendant lived at Rogersville, had a telephone, and when any of his old customers solicited prices from him, he furnished the same and agreed to buy their produce if delivered at Henderson; that Rogersville was the shipping point from which defendant shipped all his produce; that within a radius of six miles from Rogersville, were three or four country
The court dismissed the plaintiff’s bill, and he appealed to this court. The respondent concedes that plaintiff is entitled to the relief prayed for if, by engaging in business at Henderson, he violated his contract. This is to be determined by the construction given the words “at Rogersville,” found in the contract. Webster defines the word as follows: “Primarily, this word expresses the relations of presence, nearness in place. It is less definite than in or on; at the house may be in or near the house.”
In 4 Cyc. 365, it is defined as follows: “A word of somewhat indefinite' meaning, whose significance is generally controlled by the context and attending circumstances denoting the precise sense in which it is used. Hsed in reference to place it often means ‘in’ or ‘within;’ but its primary idea is ‘nearness’ or ‘proximity,’ and it is commonly used as the equivalent of ‘near’ or ‘about.’ ”
In the Standard dictionary, it is said: “With the names of cities and town the use of ‘at’ or ‘in’ depends not chiefly upon the size of the place, but upon the point of view; when we think of inclusive space, we employ ‘in.’ ”
In the case of Rogers v. Galloway Female College, 64 Ark. 627, 44 S. W. 454, 39 L. R. A. 636, the defendant agreed to give the sum of $2500 for the
In Harris v. Theus, 10 L. R. A. (N. S.) 204, the plaintiff had entered into a contract with the defendant, by the terms of which the latter agreed not to engage in the turpentine business so long as the former operated a turpentine still at Geneva. The plaintiff operated a turpentine distillery near Geneva, at a point a half mile from the corporate limits, and defendant claimed that plaintiff was not operating* his distillery at Geneva within the meaning of the contract. Geneva was the shipping point from which the plaintiff shipped his product. The court in holding against the defendant, said: “Upon the face of the contract and the averments of the bill, we find nothing that requires it to be held that ‘ at. ’ as used in the contract, means within the corporate limits of Geneva, and the averment of the erection of the distillery near Geneva is sufficient.”
In Lovin v. Hicks, 133 N. W. 575, the sufficiency of the service on the defendant was an issue. The law required the summons to be left “at the defendant’s usual place of abode.” The defendant used the first floor of the building as a store, and the second for his. family residence. The summons was left with his wife in the store. The court held it sufficient and said: “The words ‘at his house of usual abode’ do not mean ‘in’ such house. The word ‘at’ expresses the idea_ of
In Los Angeles v. Hannon, 112 Pac. 878, in construing a deed, the court said: “The word ‘at’ when applied to the place or location, is not treated as definitely locative. At the house may be in or near the house. A railroad was authorized by its charter to intersect another road ‘at Charlotte,’ and it was held that an intersection a thousand yards outside Charlotte satisfied the requirement.”
In Rogers v. Burr, 97 Ga. 10, 25 S. E. 339, a subscription contract gave the subscriber the right at the expiration of three years to elect whether he would keep the stock, and it was held that he had the right to elect within a reasonable time after the expiration of the three years.
In Davidson v. Crump Mfg. Co., 99 Mich. 501, 58 N. W. 479, the tenant’s lease provided that he should have the right to remove his property from the leased premises “at the end of this term.” The court held he had a reasonable time after the expiration of the term to remove his property.
In Waynesville v. Satterthwait, 136 N. C. 226, 48 S. E. 661, the law provided that certain improvements should commence “at the courthouse” in a certain town. The improvements were commenced at the corporate line, and the court held they were commenced “at” the courthouse within the meaning of the law. To the same effect are O’Connor v. Nadel, 117 Ala. 595, 23 So. 532; Ray v. State, 50 Ala. 172; Minter v. State, 104 Ga. 753, 30 S. E. 989; Bartlett v. Jenkins, 22 N. H. 63.
Mr. Anderson, in his dictionary of law, defines the word as follows: “The English preposition, expressing the relation of presence, nearness in place or time. The word is somewhat indefinite; it may mean ‘in,’ ‘within,’ or ‘near.’ Its primary idea is nearness, and it is less definite than in or on.”
In construing a contract or any term used therein, the surrounding circumstances may be looked to by the court to determine the sense in which the parties to the contract have used words of a doubtful or double meaning, and to determine the true sense in which such a word is used in a contract, the courts must consider the subject-matter concerning which the words were used.
In the case of Kramer v. Old, 119 N. C. 1, 34 L. R. A. 389, 56 Am. St. Rep. 650, 25 S. E. 813, the plaintiff prayed for an injunction restraining the defendant from engaging in a business which he had formerly sold to plaintiff and agreed .not to engage in in competition with plaintiff. The court in granting the relief prayed for, said: “As a court of chancery, we must declare that, where injunctive relief is asked, it is the duty of the court to restrain the contracting parties from violating the spirit, as well as the letter, of the agreement.” •
While the general rule is, that in the absence of ah express agreement, the sale of a mercantile business, together with the good will thereof, does not import an agreement by the vendor not again to engage in a competing business. [Note to Gordon v. Knott, 19 L. R. A. (N. S.) 762.] Tet where the vendor expressly agrees not to engage in the same business at the same place for a specific time, or so long as the buyer continues in business, the obvious intention is to sell the good will of the business. [Shafer v. Sloan, 85 Pac. 162.]
It has been settled since an early day in this state, that common sense and good faith are the leading characteristics of all interpretations. [Fenton v. Perkins, 3 Mo. 23; Saxton National Bank v. Haywood, 62 Mo. App. 550.] And where there is room for construction, a contract should not be interpreted so as to give an unfair advantage to one of the parties to it over the other. [McMannus v. Fair Shoe & Clothing Co., 60 Mo. App. 216; Lumber Co. v. Dent, 151 Mo. App. 614, 132 S. W. 320.]
It is also a rule of construction that the promisor is bound according to the sense in which he apprehended that the promisee received his proposition. [Bruner v. Wheaton, 46 Mo. 363.]
We gather from the agreed statement of facts that the defendant was in business at Rogersville; that this business consisted in buying, selling and shipping produce from that point; that there were country stores near Rogersville which purchased produce from farmers and others, but did not ship the same and sold a part thereof to the defendant; that there were men known as county collectors who went about the country, in the vicinity of Rogersville, and gathered .up pro
Prom this testimony, it is apparent that the defendant was in open competition with plaintiff to the same extent and in the same manner as if his store had been in Rogersville. If the business defendant sold the plaintiff had been practically limited to Rogersville, and principally with people in Rogersville, a different question would be presented, but Rogersville was not incorporated, and only had about 250 people, and the main portion of business was necessarily carried on with people who lived outside of Rogersville. When the defendant engaged in this business at Henderson, he was practically dealing with the same people he had dealt with prior to the execution of the contract with plaintiff, and was to all intents and purposes, engaged in buying produce and shipping the same at Rogersville.
If the parties had used the words “in Rogers-ville,” then there would have been no ambiguity, and it would be the duty of the court to construe the con
In Robertson v. Buchanan, 73 Law J. Ch. 408, it is held not essential to the breach of such a covenant that the vendor should reside or have a place of business within the prohibited area. He may reside outside and yet commit a breach of the covenant by his personal acts.
In Love v. Stidham, 18 App. D. C. 306, it is held that the seller of such a business is liable if he serves customers within the prohibited limits, although he may have no residence, shop, store or place of business therein.
In Millspaugh Laundry Co. v. First National Bank, 94 N. W. 262, the Supreme Court of Iowa reviewed the authorities construing the term of “good will,” and it is there held that “good will,” though often connected with the premises on which the business or trade is conducted, is not necessarily so. And it is further said that good will “includes every positive
When we consider the nature of the business and the manner in which it is conducted, we are led to believe that the words “at Rogersville” should be construed to mean near and about, and by giving the words such construction there is no question but what the defendant, at the time this suit was instituted, was engaged in strict competition, near and about Rogers-ville, with the plaintiff, for the identical trade and business he had' sold to him.
The evidence discloses that the person from whom defendant purchased the Henderson store, was also a dealer in produce, to the extent that he purchased the same and resold for the purpose of shipping, and for local customers for consumption. In so far as the defendant limits his dealing in produce to that purpose, he is not violating his contract, but in buying for the purpose of shipping, he is.
The premises considered, we will reverse the judgment and remand the cause with instructions to the trial court to enter judgment in favor of the plaintiff in conformity with this opinion.
Dissenting Opinion
SEPARATE DISSENTING OPINION.
This is an action for an injunction in which the petition charges that the defendant was in business in the town of Rogersville in Webster
The question is sharply presented in this case whether the defendant’s agreement not to engage in the produce business “at Rogersville” was an agreement not to engage in the produce business “in Henderson.” Names of towns are properly geographical terms and commonly include not only the dwellings and business houses in the town but also convey the idea of a tolerably well-defined locality where such houses are situated. The litigants in this case at 'the time of making their contract were residents of Rogersville and are assumed to have understood the meaning of the terms “Rogersville” and “Henderson” and that the names designated certain fairly well-defined geographical areas in Webster county and their contract is to be construed with reference to such extraneous facts. If the plaintiff were asked where he is doing business now he would answer, “At Rogers-ville.” If further inquiry was made of him how far that was from Henderson and in what direction, he would reply, “One and. one-half miles, south.” If defendant were asked where he is doing business, he would without hesitation reply, “At Henderson.” If further inquiry was made of him how far that was from Rogersville and in what direction, he would reply, “One and one-half miles north.” If inquiry was made whether, he .is in business at Rogersville, he would reply that he is not now
The numerous cases cited by appellant showing the meaning of the word “at” to be either “in” or “near” have no such application to the facts of this ease as to aid us in the solution of the questions presented because no case has been cited in which the facts are so closely parallel to the present one as to furnish authority for our guidance. The meaning nf the word “at” is somewhat indefinite, meaning sometimes “in” and at other times “near,” but in the present case the definition furnishes no sure guide and in order to arrive at the intention of the parties the significance of the word is to be fixed by the context and attending circumstances. At the time the parties made the contract and used the term ££ at Rogersville, ’ ’ they knew there was another town a mile' and one-half distant called Henderson at which the same kind of business was being carried on. If there had been no other established trading point in the vicinity of Rogers-ville existing as a recognized place of business, we
A sale of one’s merchandise business, when possession is surrendered of the storehouse in which the business has been carried on is ordinarily a sale of the good-will of the business but such sale does not prevent the vendor from engaging in the same business as a competitor of the vendee in the same town or from advertising his business in a general way even though it may diminish the trade of the purchaser. [20 Cyc. 1279.] The defendant in this case may well have been willing to sell his produce business and agree not to engage in the business again for five years at Rogersville for six hundred dollars, but if he was to contract away his right to engage in the business at Henderson, may have demanded eight hundred dollars, or perhaps would have declined to make any contract. But while the contract not to engage in the business at Rogersville would not prevent the defendant from engaging in the business at Henderson, he would still have no right to set up a business at Henderson and use that as a base of operations to engage in the produce business in Rogersville which he had contracted that he would not do. The most that is shown in the evidence in reg'ard to the defendant transacting business in Rogersville after his sale to the plaintiff is that he made the railroad .station at Rogersville his shipping point for his produce, and that his residence was at Rogersville, and that he received his mail there; that while he received some patronage from his old customers, in such-cases he required them to bring their produce.to his store at Henderson; that as to those who inquired by telephone for prices, he