MacMartin v. Stevens, 37 Wash. 616

MacMartin v. Stevens

37 Wash. 616 | Wash. | 1905

Dunbar, J.

Action to enjoin interference with the customers of a laundry. A general demurrer to the complaint was sustained., and the action dismissed. Plaintiffs appeal.

The complaint alleges, in substance, that the plaintiffs were engaged in the laundry business in the city of Tacoma, under the name of the Standard Steam Laundry; that the defendants, George W. Stevens and Edith Moon, had at different times been copartners in said business, had sold their respective interests to the plaintiffs, and afterwards formed a partnership, leased a laundry plant inown as the Cascade Steam Laundry, and started in at once to solicit customers from those of the plaintiffs. It is alleged, among other things, that they induced one of the drivers of plaintiffs to leave the Standard and enter the employment of the Cascade, and thereafter drive over his old route and solicit the customers with whom he had become acquainted; that by this means they had succeeded in persuading many of thé customers of the plaintiffs to *618deal with the Cascade laundry instead of the Standard, and were engaged in persuading others to do the same thing; that, rmless restrained by the court, they would continue to solicit the customers of the plaintiffs, and interfere with the business of the Standard Steam Laundry, to the irreparable injury of the plaintiffs. The acts are set forth more in detail, but we think this is sufficient to serve all purposes in discussing the case.

The agreement of sale of defendant Edith Moon was entitled, “Bill of Sale,” and, after the formal portion of the article, proceeds as follows:

“Do by these presents grant, bargain, sell an«^ convey unto the said party of the second part, his executors, administrators, and assigns, the following goods, chattels, and property, to wit: an undivided half interest in and to the Standard Steam Laundry plant [describing it] ; first parties’ interest in and to any policy or policies of insurance on any of said plant or property making up same; one hydraulic washer, now stored in this city at 15th and O streets; also-, four horses and three wagons, and harnesses; alsoj all goods and merchandise or machinery in transit purchased by the Standard Steam Laundry. . . . The intention of first party, Edith Moon, . . . being by this bill of. sale to sell and convey to second party all her interest in and to said Standard Steam Laundry, and the personal property connected and used therewith, whether same is in the.building or outside thereof, where said-business is carried on, except her interest in and to accounts and bills receivable- due for past business;”

agrees to give possession, etc.; and warrants the title to the property sold. ■ The bill of sale of defendant Stevens is1 essentially the same-.

We think the demurrer was properly sustained. This, is an action on a contract. The contract seems to. be a simple one, viz., the sale of certain specific property. There is no contract to forbear entering into- the same- business in the same neighborhood, or to forbear conducting an opposition *619business in any manner whatever. There is no contract not to solicit. The plaintiffs’ rights must be determined by what is contained in the contract, either by express provision or by plain implication, and we are unable to see that the contract set forth bears any implications whatever. The markets of this country are open to all who desire to seek them, no matter what character of commodity they are offering for sale. There is no exclusive right of sale given by law to any. one, and, unless the citizen contracts away this right, he will be protected in it. It is, no doubt, true that a case of conspiracy - might be shown where parties had conspired for the purpose of injuring one’s business. But that would be so whether the conspirators had sold their interests in the business to the complainant or not. Strangers to the business would be as liable under such circumstances as those who had once been partners in the business. It is an easy matter, in a case of this kind, if the good will of the business is disposed of, or if there is an agreement on the part of the parties to the contract to forbear to prosecute the same kind of a business, or to solicit the patronage of the public at large or of the customers of the established business which they are selling, to incorporate that agreement in the contract. But, unless it is incorporated, a plain contract of sale cannot be construed into a contract to relinquish rights which are- not expressed, or the relinquishment of which is not implied. As is well said by the respondent:

“If these bills of sale are to be construed to contain such covenants as is claimed by appellants, it would be necessary for further construction as to how long they were to continue, and when they would end, whether in a week, a month, or a year, or whether there would be a perpetual injunction on the right of the seller to establish a like business with a right of solicitation.”

It is true, it is alleged in the complaint that the good will *620was the most valuable part of the business, and the retiring partners, selling all their interests in the firm and being paid therefor, sold everything connected with the business capable of producing a profit; hence, inevitably, the good will passed. But the demurrer admits only the facts which are well pleaded, and this is simply a conclusion of the pleader, while the bill of sale upon which the affidavit is based does not warrant the conclusion asserted in the affidavit.

We think no ¿rror was committed by the court in sustaining the demurrer. The judgment is therefore affirmed.

Mount, C. J., Fullerton, and Hadley, JJ., concur.

Rudkin, Root, and Crow, JJ., took no part.