delivered the opinion of the court.
Priоr to November 20, 1947, the parties to this action were partners in a business knоwn as Burlington Livestock Sales Company, operating at Burlington, Colorado. On that date plaintiffs in error, who were plaintiffs below, entered into a writtеn contract for the purchase of defendant’s interest in said business for a valuable consideration. The contract contained a prоvision that defendant would not “enter into any livestock pavilion business, either directly or indirectly, within a radius of fifty miles of Burlington, Colorado, within a period of fifty years from date.”
Defendant allegedly, in violation of the above сovenant, has entered into the livestock pavilion business at Stratton, Colorado, which is within a radius of fifty miles of Burlington. Thereupon plaintiffs brought this action for an injunction and damages for breach of the contract, and shоrtly thereafter petitioned the court for a temporary injunction during thе pendency of the action, alleging in the petition that unless restrainеd, defendant would continue to violate the terms of the contract to plaintiffs’ injury. The trial court denied the temporary injunction stating inter alia: “There has been no showing of any real or actual injury.”
Defendant in the present case received a large sum of money in consideration оf which, he agreed not to conduct a livestock sales pavilion business within a prescribed territory. He willfully violated said contract, threatens to continue to do so in the future, and now contends that because plаintiffs did not, on their application for temporary injunction, prove thе extent of their damages, they are not entitled to said injunction.
The rule is well settled that: “Where an established business has been sold with its good will and there is a valid covenant not to compete, a breach is regarded as the controlling factor and injunctive relief follows almost as a matter of course. In such cases, the damage is presumed to be irreparable and the remedy
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at law is considered inadequate. It is not necessary that the buyer first prove special pecuniary damages or shоw an actual loss of customers who might in any event have discontinued their patronage. Injunctive relief may be given, even though only nominal damagеs are shown, or although no actual damage is shown.” 43 C.J.S., pp. 566, 567, §84. See, alsо,
Zinn v. Ex-Cell-O Corporation,
24 Cal. (2d) 290,
Defendаnt in the instant case does not contend that the covenant is unreasоnable or that it imposes undue hardships upon him or that the restricted arеa is larger than necessary to protect plaintiffs, recognized аs defenses in this type of action.
Whittenberg v. Williams,
The rеasons advanced by defendant which, as said, justify the violation of his contract not to engage in the mentioned business within the restricted area, constitutes, we are convinced, “shifty and flimsy excuses” within the contemplation оf our opinion in
Weber v. Nonpareil Baking Co.,
The ruling of the trial court in denying plaintiffs’ application fоr a temporary injunction, is reversed and the cause remanded with instructions to grant the application and issue the injunction which shall be effective pending the determination of the case on the merits.
Mr. Chief Justice Jackson and Mr. Justice Holland concur.