226 F. 443 | 9th Cir. | 1915
(after stating the facts as above).
At the close of the testimony the defendant, following the practice in Alaska, moved for judgment on the pleadings and evidence, on the ground that the defendant’s agreement not to engage in general merchandise business at Rampart was separate and distinct from the sale of the goods, and not related thereto, and that the defendant had not in fact violated the same, and that there was no competent evidence that the plaintiff had sustained damages. Upon the conflicting evidence the court below found as one of the facts that the sale and agreement were so united in time and purpose as to be one contract, and we must take that finding to be conclusive here. The fact that
It is urged that the act of the defendant in accepting employment as clerk for a rival store was not a breach of the agreement. But the court found that the defendant did more than merely to act as a clerk on a salary. It found that he acted in the capacity of manager and managing clerk of the rival store. The obligation in such a case is to observe the spirit, as well as the letter, of the agreement. In 24 Am. & Eng.Enc. of Law, 859, it is said: “A covenant not to carry on a certain trade is broken where the covenantor does so as the agent or manager or employé of another.”
Decisions supporting that rule are Wilson v. Delaney, 137 Iowa, 636, 113 N.W. 842; Meyers v. Merillion, 118 Cal. 352, 50 P. 662; Smith v. Webb, 176 Ala. 596, 58 So. 913, 40 L.R.A.(N.S.) 1191; McAuliffe v. Vaughan, 135 Ga. 852, 70 S.E. 322, 33 L.R.A.(N.S.) 255, Ann.Cas.1912A, 290; Kramer v. Old, 119 N.C. 1, 25 S.E. 813, 34 L.R.A. 389, 56 Am.St.Rep. 650; Finger v. Hahn, 42 N.J.Eq. 606, 8 A. 654; Knowles v. Jones, 182 Ala. 187, 62 So. 514.
It is contended that the court below erred in construing the promise of the defendant to forfeit $2,000 in case of breach of the agreement to be a provision for the payment of liquidated damages, and it is asserted that it is an agreement for the payment of a penalty, and that upon the breach thereof the plaintiff must prove the actual damages sustained. In general, it may be said that the contracting parties are permitted to agree upon the precise amount of damages to be paid in all cases in which the damages are uncertain in their nature, or difficult to ascertain, or impossible to be estimated with certainty, and this is es
In Potter v. Ahrens, 110 Cal. 681, 43 P. 388, the court said: “The damages for breach of contract for the purchase of the good will of an established trade or business are so absolutely uncertain that courts have recognized the fullest liberty of parties to fix beforehand the amount of damages in that class of cases.”
See, also, McCurry v. Gibson, 108 Ala. 451, 18 So. 806, 54 Am.St.Rep. 177; Streeter v. Rush, 25 Cal. 67; Holbrook v. Tobey, 66 Me. 410, 22 Am.Rep. 581; Cushing v. Drew, 97 Mass. 445; Geiger v. Cawley, 146 Mich. 550, 109 N.W. 1064; Canady v. Knox, 43 Wash. 567, 86 P. 930; Martin v. Murphy, 129 Ind. 464, 28 N.E. 1118; Kelso v. Reid, 145 Pa. 606, 23 A. 323, 27 Am.St.Rep. 716; Newman v. Wolfson, 69 Ga. 764. We find nothing in the contract itself, and nothing was developed upon the pleadings or the trial, to show that the sum so agreed to be paid as damages was so unjust or oppressive, or disproportionate to the damages sustained, as to render-the case an exception to the general rule, and we are not convinced that the court below erred in ruling that the damages were liquidated by the parties.
The judgment is affirmed.