4 Conn. App. 233 | Conn. App. Ct. | 1985
This appeal arose from an action for equitable relief and to recover for damage allegedly caused by the defendants’ breach of a contract for the sale and purchase of a business interest, and an agreement not to compete. The trial referee rendered judgment for the defendants as to the alleged breach of the covenant not to compete and for the plaintiffs as to the breach of the agreement not to solicit business, also contained in the covenant, but awarded only nominal damages to the plaintiffs as a result of that breach. The plaintiffs appeal the court’s decision as to both aspects of the judgment.
The plaintiffs, Myles E. Covey and Norma S. Covey, owned one half of the interest in a business known as C & W Manufacturing Company, Inc. (C & W).
Ancillary to the sale of the business and after extensive negotiations, the plaintiffs and the defendants entered into a “Covenant Not to Compete” which was incorporated into the contract of sale.
The plaintiffs claim the trial court erred in its interpretation of the term “competitive business” as that
A second issue here involved arises out of the plaintiffs’ claim that the defendants breached their agreement not to solicit any business “from any account, customer, or client previously served by the CORPORATION” (C & W) as shown on a certain schedule or list. The J.M. Ney Co. is included in that list of about fifty names. The trial court found that Willson, as an officer and director first of the Merit Company and, after the change of name, of Willson Manufacturing Company, Inc., did solicit from the Ney Company the business of manufacturing “The Ney Surveyor.” It concluded, however, that although the plaintiffs did prove that the defendants, by soliciting for the Ney business, have breached their agreement not to solicit business from a company listed on the proscribed list, they did not prove that they thereby sustained any actual damages and, therefore, were entitled to recover only nominal damages. The trial court, in its memorandum of decision commented on the evidence as follows: “The plaintiff Covey never considered making “The Ney Sur
We reject the plaintiff’s claim that the trial court should have viewed paragraph five as containing two interdependent restrictive covenants, collectively expressing the parties’ intent and that a violation of either would constitute a complete breach of the whole of paragraph five. The trial court analyzed the language of the paragraph and compared the words of the covenant not to compete with the words which formed the agreement not to solicit as therein contained.
In the light of the court’s finding of a breach of the agreement not to solicit, and its finding that no actual damages were proved, the court correctly concluded that the plaintiffs should recover nominal damages for the technical legal injury. Riccio v. Abate, 176 Conn. 415, 418-19, 407 A.2d 1005 (1979); Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 409, 365 A.2d 1086 (1976); Dimmock v. New London, 157 Conn. 9, 16, 245 A.2d 569 (1968).
There is no error.
In this opinion the other judges concurred.
C & W was added as a party plaintiff before trial.
The pertinent portions of the covenant not to compete and the agreement not to solicit provide: “5. COVENANT NOT TO COMPETE. For a period of six (6) years from the date of closing, the SELLER shall not directly or indirectly enter into a competitive business either as a sole proprietor, stockholder, partner or as an agent, servant or employee of a business which is engaged in the same or similar manufacturing business as the CORPORATION within the States of New York, New Jersey, Pennsylvania and all of the New England States. In consideration for the covenant not to compete the SELLER, Donald W. Willson, shall be paid THIRTY THOUSAND ($30,000.00) DOLLARS per year for six (6) years on a weekly basis. In addition to the covenant not to compete, the SELLER hereby argees not to solicit any business whether as a sole proprietor, stockholder, partner, or as an agent, servant or employee of a business which is engaged in the same or similar manufacturing business as the CORPORATION from any account, customer or client previously serviced by the CORPORATION as shown on the customer list set out in Schedule C within the States of New York, New Jersey, Pennsylvania and all of the New England States.