180 Ky. 799 | Ky. Ct. App. | 1918
Opinion op the Court by
Affirming.
Prior to January 1, 1912, Chas. A. Kochenrath was conducting in the city of New Albany, Ind., the business of a wholesale and retail liquor dealer under the name of the City Bottling Works., Besides beer and whiskey he sold mineral water, temperance beer, dry beer, etc. The greater portion of his business was what is known as mail order business. On January 17, 1912, Kochenrath, by a written contract which became effective January 1,1912, sold and conveyed to Otto W.' Christ-man for a large consideration, a part of which was represented by a note for $4,000.00 secured by a mortgage on real estate located in Shelbyville, Ky. By the contract in question, Kochenrath obligated himself not to engage directly or indirectly in the manufacture or sale, either wholesale or retail, of spirituous, vinous, malt liquors, mineral waters, kolas, temperance beer, dry beer, etc., in any portion of the state of Indiana for a period of five years. A few months later Kochenrath violated his contract by engaging in the same business in the city of New Albany, under the name of the Crescent Liquor Company.
In the year 1914, Kochenrath brought suit against Christman in the Shelby circuit court to collect the note for $4,000.00, subject to a credit of $1,000.00 paid September 8, 1912, and to enforce his mortgage
It will be observed that by the agreement in controversy the seller disposed of the entire business, and that the restraint imposed is ancillary to the contract of sale, and, therefore, the contract falls within the rule that the restraint imposed must be incident to, and in support of, another contract or sale in which . the purchaser acquires some interest in the business needing protection. 13 C. J. 477; Barrone v. Moseley, 144 Ky. 698, 139 S. W. 869; Nickell v. Johnson, 162 Ky. 520, 172 S. W. 938. It will also be observed that the restraint is limited both as to time and place. Hence the only question to be determined is whether the restraint is no more than is reasonably necessary for. the protection of the business transferred, and is not so large as to interfere with the interest of the public. 13 C. J. 475, 476; Linneman v. Allison, 142 Ky. 309, 134 S. W. 134. At one time it was the rule in certain jurisdictions that an agreement not to carry on a business anywhere within a state was invalid, More v. Bonnet, 40 Cal. 251, 6 Am. Rep. 621; Taylor v. Blanchard, 13 Allen (Mass.) 370, 90 Am. Dec. 203; Lawrence v. Kidder, 10 Barb. (N. Y.) 641; but in the later cases this doctrine has been rejected. 13 C. J. 472; Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64, 22 L. Ed. 315; Beal v. Chase, 31 Mich. 490; National Ben. Co. v. Union Hospital Co. 45 Minn. 272, 47 N. W. 806, 11 L. R. A. 437; Diamond Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419, 60 Am. Rep. 464; Cowan v. Fairbrotlier, 118 N. C. 406, 24 S. E. 212, 54 Am. St. Rep. 733, 32 L. R. A. 829; Herreshoff v, Boutineau, 17 R. I. 3, 19 A. 712, 33 Am. St. Rep. 850, 8 L. R. A. 469. Furthermore the nature of the business
But it is insisted that the court erred in fixing the damages at $4,000.00. The evidence shows a deliberate violation of the contract by plaintiff. When he sold out the business of the defendant he retained a mailing list of the customers of the firm both in Indiana and Kentucky. When on the stand he refused to exhibit the books of the new business in which he had engaged, or to furnish a list of his customers, or to give any information concerning the amount of business which he did. After considerable delay, however, the defendant did secure the deposition of plaintiff’s bookkeeper, who testified in substance that plaintiff’s new concern did a business averaging about $24,000.00 a year. One-fourth of this business was done on orders received from Indiana and
Another error relied on is the refusal of the trial court to transfer the case to the common law docket for the trial of the issue of damages. The point is made that when the petition seeking an enforcement of plaintiff’s lien was dismissed, the equitable feature of the action was eliminated, and there was left only the common law issue of damages which plaintiff then had the right to have tried by a jury. We have frequently written that where a litigant desires to have an issue at law arising in an equitable action by a jury, the motion to have the case transferred for such purpose must be made at the time'the pleading tendering the issue is
Judgment affirmed.