Fambrough v. Townson

May 20, 1920
6 Div. 68.
Reporters:
, ,
Before:
Gardner
GARDNER, J.

[1] Complainant seeks specific performance of a contract — the substance of which appears in the foregoing statement of the case — by means of injunctive process to prevent its violation. The agreement on the part of respondent ‍​‌​​‌​​​‌‌​​​‌​​​​​‌‌‌‌​​‌‌‌‌‌‌​​‌​​​​‌‌‌​‌‌‌‌​‌​​​‌‌​​​​‌‌​‌​‌​​‌‌​‌‌​​​‌​​‌‌‌​​​‌​​‌‌‌​‌​​​‌​​‍not to engage in the barber shop business in competition with complainant is limited to the town of Oneonta, and under the repeated .decisions of this court is not void as in restraint of trade. Smith v. Webb, 176 Ala. 596, 58 South. 913, 40 L. R. A. (N. S.) 1191. This authority fully sustains the validity of the contract here sought to be enforced.

[2, 3] Much stress is laid in argument of counsel for appellant upon ‍​‌​​‌​​​‌‌​​​‌​​​​​‌‌‌‌​​‌‌‌‌‌‌​​‌​​​​‌‌‌​‌‌‌‌​‌​​​‌‌​​​​‌‌​‌​‌​​‌‌​‌‌​​​‌​​‌‌‌​​​‌​​‌‌‌​‌​​​‌​​‍the fact that one note for $50 due by complainant to respondent had not been paid at the time of the filing of the bill. But if complainant’s evidence is to be accepted, it discloses a good excuse therefor. The bill offers to do equity, and in cases of this character the chancery court’ has the power to require that equity be done as a condition precedent to relief. This in.sistence is therefore without ‍​‌​​‌​​​‌‌​​​‌​​​​​‌‌‌‌​​‌‌‌‌‌‌​​‌​​​​‌‌‌​‌‌‌‌​‌​​​‌‌​​​​‌‌​‌​‌​​‌‌​‌‌​​​‌​​‌‌‌​​​‌​​‌‌‌​‌​​​‌​​‍merit. Zirkle v. Ball, 171 Ala. 568, 54 South. 1000. There is nothing in the case of Cooper v. Cooper, 201 Ala. 477, 78 South. 383, which at all militates against this conclusion.-

[4] The instrument very clearly did not set out the entire contract, in that it failed to show that the full consideration for the $750 was the purchase of respondent’s barber shop and the good will of the business; and permitting this to be done by parol ‍​‌​​‌​​​‌‌​​​‌​​​​​‌‌‌‌​​‌‌‌‌‌‌​​‌​​​​‌‌‌​‌‌‌‌​‌​​​‌‌​​​​‌‌​‌​‌​​‌‌​‌‌​​​‌​​‌‌‌​​​‌​​‌‌‌​‌​​​‌​​‍proof did not contravene any rule of evidence. Hamaker v. Coons, 117 Ala. 603, 23 South. 655; Vandegrift v. Abbott, 75 Ala. 487; Smith v. Rice, 56 Ala. 417; 3 Mayf. Dig. 553 et seq.

There is proof showing that respondent was reminded of this agreement at the time-preparations were begun and expenditures made by him for another shop. We find nothing in the record indicating that it would be inequitable or unjust to have the agreement specifically enforced, ‍​‌​​‌​​​‌‌​​​‌​​​​​‌‌‌‌​​‌‌‌‌‌‌​​‌​​​​‌‌‌​‌‌‌‌​‌​​​‌‌​​​​‌‌​‌​‌​​‌‌​‌‌​​​‌​​‌‌‌​​​‌​​‌‌‌​‌​​​‌​​‍but rather the contrary appears. The chancellor correctly awarded complainant relief, and his decree will be-here affirmed.

Affirmed.

ANDERSON, C. J., and SAYRE and BROWN, JJ., concur.

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