215 Wis. 470 | Wis. | 1934
This action was brought by the plaintiff to restrain the defendant Charles F. Marten from breaching a restraint-of-trade agreement made by him with the plaintiff upon purchase by the plaintiff of premises upon which was located a cheese factory. The machinery in the factory was also purchased by the plaintiff. This property was owned by the defendant Charles F. Marten and his wife. The wife was not a party to the restraint-of-trade agreement. By the agreement the defendant Charles F. Marten agreed not to engage as owner, proprietor, partner, or director, directly or indirectly, in the business of operating a cheese factory within the territory naturally tributary to the factory purchased. Upon the trial the wife was made and the trial was continued with her as a party on the alleged ground that she and her husband conspired to effect a breach of the agreement by Charles F. Marten. The court found that the plaintiff discontinued the making of cheese in the factory it
On appeal to this court the plaintiff contended that what the restraint-o f-trade agreement was intended to protect was, not' the right of the plaintiff to make cheese in the factory without competition by the defendant Charles F. Marten as cheesemaker, but the right to the milk supply tributary to the factory free from competition of Marten as a cheesemaker; that the language of the contract was ambiguous; and that the plaintiff should have been permitted to show that a general custom existed to the effect that the milk supply constitutes the inducement to the purchase of a cheese factory and the thing that fixes the price paid therefor. This court concluded that no issue between the parties as to the meaning of the restraint-o f-trade agreement was raised by the pleadings or had been tried, and remanded the case for amendment of the complaint to raise, and for trial of that issue.
Upon return of the record the complaint was amended to state, in addition to the allegations of the prior amended complaint, that the defendant Charles F. Marten sold to the plaintiff the cheese factory “and the good will of the busi
Upon retrial the court did not limit itself to the trial of the issue it was directed by the mandate of this court to try, but contrary to its finding upon the first trial found that the plaintiff’s cessation of cheesemaking in the factory purchased was only temporary, and that the restrictive obligation of the agreement is still operative against Charles F. Marten. But the court further found that Charles F. Marten did not violate said agreement; that the business of cheesemaking conducted in a near factory that was claimed by plaintiff to be a violation of that agreement is the sole and separate business of Mrs. Marten; and that Mrs. Marten did not conspire with Charles Marten to violate the latter’s agreement. Judgment was entered dismissing the complaint. Several other findings of fact were made by the trial court, but it is manifest that if the findings above stated are sustained by the evidence the judgment must be affirmed. As in our view these findings must be sustained, there is no need to consider any other findings.
It is strenuously contended by counsel for appellant that the findings above stated are “against .the clear weight and great preponderance of the evidence” and therefore cannot be sustained. We are unable to uphold this contention. While the cold type of the printed case might seem to sup
By the Court. — The judgment of the circuit court is affirmed.