*1 HAGERTY, LOCKENVITZ, ASSOCIATES, Plaintiff-Appellee, GINZKEY AND GINZKEY, Defendant-Appellant.
v. ROBERT E. Fourth District No. 15856 Opinion filed 1980. June GREEN, J., specially concurring. Associates, Ltd., appellant. Hayes Bloomington,
Merrick & Pratt, C., Larkin, appellee. Sternberg Finegan, Bloomington, P. opinion delivered MILLS PRESIDING JUSTICE court: “compete.”
A covenant $7,313.72 below;
Enforced
We reverse. to have breached was found Ginzkey (the defendant)
Robert which was contained covenant not *2 of his upon the conclusion plaintiff with the corporation entered into agreement, corporation. with that Prior to shareholder, co-founder, officer, director, plaintiff employee a of $7,313.72 in such sum damages, corporation. He was ordered pay representing the lost profits. which stated: provision
The decisive portion °* agrees Shareholder [defendant] as of Corporation clients of (1) year the date hereof as to hereof, directly indirectly compete the date Shareholder will or * * *.” Corporation in the advertising found— corporation’s complaint asserted —and trial court obtaining entire provision by defendant breached this Mortell, Inc., in agreement. business of contravention of the terms of the argues appeal on that the evidence, of that the did corporation account, protectable not have a in the Mortell and that property interest trial of We do not improper measure address the third we that there has arguments second and because find agreement. been no breach of the outset, validity
At the note of we should of questioned sufficiency not been nor has the the consideration. Additionally, plaintiff client of the dispute there is no on corporation the date of or defendant did involved, one-year period. question with Mortell within the The narrow it, with the perceive we is whether defendant order, result, legal declaring provides court’s while unfortunate, This is since we analysis for which is drawn. conclusion speculate are therefore the basis the decision. forced contract, determining whether breached the incumbent what inaction was upon the trial court to determine action or given general, meaning mandated the contract terms. In plain words a written is a of law for question instrument peculiar attached no where have unusual R.R. (Ahlvers v. Terminal Association words. Where, however, Ill. App. 329.) language 334 N.E.2d leaves that it receive necessary true intent of the writer doubt so fact, question extrinsic becomes one of fact for the trier of Corp. v. court. Standard Steel Wire this case the trial Capital Corp. (1975), 26 Ill. App. 3d N.E.2d 33.
While we
felt that the
say
certainty
cannot
not,
given
contract was
we hold that was
that —
facts presented
did not breach the contract.
—defendant
ambiguous writing
capable
is one
understood
more
being
(State Security
Insurance
than
Co. Linton
one sense.
67 Ill.
718.)
simply
But a contract is not rendered ambiguous
v. American
Harris
agree
meaning.
because the
do not
on its
Corp. General Finance
The word is a common word which is not easily susceptible peculiar interpretations. means “Compete” to seek or strive for something for which others are contending or to with another for vie prize. (Webster’s (1959).) Third New International *3 reward, it means Similarly, emulously; position, to contend to strive for in Black’s profit goal striving; rivalry. for which is to contend another 1979). Law 257 ed. all they require that
The critical definitions is feature above vie, seek, strive, person A must by competitor. volitional act the covenantor, compete, a As to a covenant not to who contend. actively has not present and available but solicited not competed. term, the
Having the the us review determined let after facts. that with the client Mortell Defendant his first contact at National Hardware departure plaintiff corporation his from the was the time, Don spoke At this he with mid-August in in of 1978. Show (manager of corporation), Ray the client Rivard (president manager). sales division), (the weatherstripping and Willard Huff In mid- plans his future Defendant did not discuss Rivard, inquired a call from who September, defendant received considering that he was told Rivard job prospects. defendant’s Defendant him know let asked the defendant opening agency his own and Rivard you’re coming along.” “how 1978, 16, when Rivard came around November next contact
643 relationship with his terminating and told defendant phoned still that he was Rivard Defendant advised work for that he could not considering opening his own in latter’s 20, defendant met Rivard Mortell. On November no meeting a social call and office. This 28, 1978, received around November discussed. Sometime Mortell, in which Inc., plaintiff corporation, of a sent copy letter longer using be plaintiff corporation Mortell informed they discussed then met with Rivard and its services. following year. advertising for Rivard. substantially testimony was corroborated
Defendant’s him in further added that defendant informed November Rivard they Mortell until terminated could no business for he decided to cease Rivard also stated that immediately mid-August using began investigating advertising agencies. uncontradicted,
This fails establish clearly which was for the Mortell plaintiff corporation account. O’Sullivan Conrad 44 upon
Plaintiff relies decisions and Cockerill v. Wilson 926, 752, Ill. part revd Ill. N.E.2d required
N.E.2d
there
claiming
for
competition
advertising agency
and that the mere
opening
misplaced.
was sufficient. Plaintiff’s reliance was
O’Sullivan,
ongoing
In
an
for
sale of
signed
two
seller
optical
facilities.
provided
employed
buyer
period
the termination of
year. Upon
employment,
agreement provided
seller’s
that the seller would not
engage
optical
in a
within a 75-mile
competing
radius
years
leaving
employ,
after
years.
buyer’s
five
Four
opened
buyer
seller
an
office. The
optical
original
office miles from
brought a
the trial
injunction
suit for
which was entered
court.
found
affirming,
Fifth District
first
covenant
public.
As to
injurious
reasonable
was not
defendant’s last contention —that no breach had been established because
active solicitation —the
buyer
not shown
court found
issue waived
had
failure
present
defendant’s
it to
court.
*4
Cockerill decision
word
the fact
distinguishable
“compete”
agreement
not
in the
under
51 Ill. 2d
used
consideration.
179, 181,
Even found that the contract was compete same. not our decision would Covenants to are strictly construed and interpreted, any ambiguities and doubts or must be resolved favor of rights the natural and against restriction. (Southwest Industries, Forest Inc. v. 1972), Cir. 482 F.2d Sharfstein 915.) The this effect of rule is burden on the place this case. We find that the plaintiff has failed.
The defendant the provision of business. Hagerty stated that the terms contract were broad enough any cover done defendant with any addition, client defendant presented opinion testimony from witness who in the had been involved industry since 1960. The witness stated the word “compete” as the industry used meant active solicitation of business. Furthermore, both Hagerty Rivard and stated that was free seek the
We do not conclude that has established that the intended the synonymous term business.” “doing to be of the therefore reversed.
Reversed.
LEWIS, J., concurs. GREEN, concurring specially: JUSTICE bécause, I concur in the reversal judgment of the concisely majority, stated trial court’s apparent prohibited the agreement accepting from the account of plaintiff’s during one-year period contrary former client agreement of the evidence. also note that I only not applicable regard would case, clients. For that and existing reason under the facts likely seem most if the to prohibit had intended clients, those would have been drafted to so state.
However, indirectly compete” phrase “directly I do consider for business ambiguous. compete have been Some entities fairly recently, at presence availability. Until announced least, professionals, personal lawyers many this was true such solicitations are still not made. one properly professional profession certain others of against not a prohibition active necessarily limited Here, “indirectly” the use in the of the adverb solicitation. was an essential negate certainty tends to that active solicitation further examined prohibited. properly element of the conduct phrase. extrinsic evidence to determine