Drake v. Dodsworth, 4 Kan. 159

Drake v. Dodsworth

4 Kan. 159 | Kan. | 1867

*168By the Court,

Kingman, C. J.

This proceeding in error is brought to reverse an order of the district court of Leavenworth county, refusing, on application for a temporary injunction, to restrain the defendant from carrying on or working at the business of a book binder in the city of Leavenworth, and especially upon Third street, in said city.

The defendant in error makes certain objections to the regularity of the proceedings taken to get the case into this court, which are not well taken. The order refusing the injunction was made in vacation, on the 2d day of August, 1866. The bill of exceptions was not filed till the 3d day of September thereafter, more than ten days after the order, refusing the injunction, was made. This would be fatal under section one of the laws of 1865 (p. 130), were it not waived by the defendant. This, we think, was done by the attorneys’ indorsement thereon, which is in these words:

“We consent to within bill of exceptions. Sept. 1, 1866. Clough & Wheat, attorneys for defendant.”

This indorsement, being made at the time the bill of exceptions was presented to the court, must be taken as their consent to the signing and filing the same, and to a waiver of any laches by not filing it in proper time. It may not have been so intended, but it would certainly be a fair inference that such was its purpose, and, as such, the plaintiff had a right to consider it.

It is further urged that a portion of the original papers are sent up, and not a transcript of papers. The clerk, however, certifies it to be a transcript, and as such, in the absence of any showing, we are bound to treat it. It is true that in the bill of exceptions the clerk is instructed to insert in one place the original *169papers. This was evidently done by the court below, inadvertently, and in the confidence reposed by it in a bill of exceptions to which both parties had given their consent.

The clerk’s office of the district court is the proper and legal depository of the records of that court, and there they should be kept. The law requires a transcript to be sent to this court, and it is not lawful or proper to send the original papers. But as appears by the record, whatever may be the real facts, this record is a transcript, and we must so treat it.

These conclusions upon the preliminary points, raised by the defendant in error, made it necessary to inquire into the case on its own merits.

The plaintiff, in the case which he made out in his application for a temporary injunction, shows that a contract was made between himself and defendant, on the 14th day of August, 1865, of which the following is a copy:

“Leavenworth, August 14, 1865.

“Messrs. Drake Bros, bought of S. Dodsworth 1 ruling machine, 1 standing press, 1 printing press, type, &c., 1 paging machine, 2 ploughs and cutters, 1 cutting machine, 1 finishing tool, &c., together with all the stock, fixtures and tools and machinery, of every description, now in or belonging to the Kansas Book Bindery, in Leavenworth City, Kansas, including, also, my right, title and good will to the above, which I declare to be entirely unincumbered; the whole for the sum of twenty-four hundred dollars, the receipt whereof is hereby acknowledged. S. Dodsworth.”

Plaintiff also alleges that defendant, prior to and at the time of making said writing, made a further agreement to refrain thereafter from carrying on or working *170at tlie business of a book binder in tlie city of Leavenworth. Plaintiff farther shows that defendant is now engaged in. such business of a boo^ binder in the samé place where he conducted the Kansas Book Bindery, to the detriment of the plaintiff; that defendant is insolvent, and therefore the injunction is sought to restrain defendant from carrying on said business in Leavenwortli, and especially on Third street, in said city. It appears from the papers that the agreement not to engage in the business of book binding in the city of Leavenworth, was a verbal one, and that that part of the contract is denied by the defendant.

It is not denied that if all parts of the contract are to be taken into consideration, and are to be taken as true, a temporary injunction should have been granted; but defendant in error, besides his denial of the truth of the verbal stipulations, insists that they cannot be received in evidence, as the parties had reduced their contract to writing, and had, thereby, merged all prior, contemporaneous stipulations and negotiations in reference to the same subject matter, in the written contract.

The conclusion we have come to on this, the controlling question of the case, renders it unnecessary to determine the proper weight to be given to the conflicting statements of the affidavits, for we should, for the purposes of this case, assume those presented by the plaintiff to be true; nor do we deem it necessary to indicate an opinion how far an agreement may be made, partly in parol and partly in writing ; for a careful examination of the authorities referred to in the briefs, and such others as are within our reach, satisfy us that this is not a case when such a decision is necessary.

Those cases that have gone the farthest in receiving *171parol testimony as to the terms of a contract, when it has been reduced to writing, or a part of it, expressly limit its admission to those cases when the parties themselves have not appointed a writing as evidence of that part of their contract, or when the parol agreement is in execution of some distinct and separate provision of the written one, not provided for in the latter.

In the case of Miller v. Fichthorn (31 Penn., 252), referred to by the plaintiff, the court say that the only questions tobe asked are: “Is the parol testimony excluded bylaw ? or is it excluded because the parties have appointed a writing as evidence of their contract % If the parties have instituted written evidence of only part of the transaction, not including the parts to be proved orally, then the evidence is entitled to be heard.” This is the doctrine of that case, and it certainly carries the principle as far as it can be done with safety, and perhaps farther. A writing should be looked upon as a final consummation of the .negotiations of the parties, and an exact expression of their purpose. All previous and contemporaneous talk is merged in the writing which is adopted for that purpose ; and if held subject to enlargement, or other alteration, according to testimony and the infirmities of men’s memories, influenced by their interests, it would be useless to reduce a contract to writing. It would, further, be pernicious ; for one party, relying on the writing as defining his rights and limiting his responsibilities, would look only to its terms, while the other, trusting to extend the terms of the written contract by testimony, would carefully treasure up the previous talk about it, while it was still a subject of negotiation, and, by keeping in mind those persons who heard the conversation, be able to prove much *172that was said, which, instead.of enabling the courts to enforce the contract really made, wonld be apt to induce them to make a contract for the parties which they never made for themselves.

In the case before us, the parties have not only reduced their contract to writing, but have included in its terms that very branch of it which- the plaintiff seeks to enlarge by parol testimony. The defendant not only sold the stock, fixtures, tools and machinery, but also the good will of the same. Now, this good will gave the plaintiff some rights, and to the exact extent of those rights the sale thereof was a restraint of the defendant’s right to use them.

The exact extent of those rights need not be inquired into here. It is sufficient for our purpose that it to some extent divested the defendant of his otherwise perfect liberty to carry on or work at the book bindery business in the city of Leavenworth, in any way'he pleased.

By the sale of the u good will,” he could not use the old name, and relinquished any benefit or advantage which might result from its previously established character; nor could he do any other act that wonld prevent his vendee from enjoying that good will, as well against himself as others, to the same extent and in the same way that the defendant had himself a previous right to the unmolested enjoyment of them. This written agreement, then, did, to a certain extent, limit and restrain the defendant in his rights to carry on his business of a book binder. And on the very liberal principles of the case of Miller v. Fichthorn, cited above, the parol testimony in this case was not admissible, because the parties have instituted a written agreement, embracing not only the contract of sale, *173but also a stipulation that to a certain extent restrains the defendant in the exercise of his otherwise undoubted rights. To enlarge that restraint by parol testimony, would be extending the right of varying a written contract by oral testimony, that would be really dangerous in itself, and going farther than any well considered case will authorize. Excluding, then, all evidence of a contract but the written one, we are satisfied that the case presented to the judge below did not authorize an order of temporary injunction in the case, and the decision of the case in this matter is affirmed.

All the justices concurring.'