66 A.2d 218 | Pa. Super. Ct. | 1949
Argued April 20, 1949. In this action in equity an injunctive decree was entered restricting the defendant in the scope of her employment for the period of one year, following the date when she left the plaintiff's service.
There is no material dispute as to the facts and the testimony amply supports the findings of the lower court to this effect: Defendant had been employed by the former owner of "The Ladies Store" in Butler for twenty-five years prior to the sale of the store to plaintiff *501 on September 23, 1947. The business consisted in the sale of women's ready-to-wear apparel at retail. Defendant was the buyer of merchandise as well as in charge of sales for the former owner. Plaintiff, after acquiring the business, hired the defendant as manager of the store, at the same location in Butler, under a verbal contract at a salary of $60 per week. Defendant's duties under the contract were general and included the securing of necessary employes and fixing their wages, as well as the buying of some merchandise. On February 21, 1948 at the insistence of plaintiff's district manager, she entered into a written contract of employment with the plaintiff supplanting the existing verbal agreement. The contract, not under seal, is in the form adopted by plaintiff in contracting for the services of managers of all of its sixty similar stores in other cities. By its terms defendant's salary remained at the same rate of $60 per week and her duties as manager of plaintiff's store were unchanged. The provisions of the written contract, material here, are these:
"2. The term of this Employment shall be from week to week, terminable by either party at the close of business on any Saturday by giving one week's full notice to the other party. The COMPANY may give one week's salary in lieu of notice. . . .
4. The EMPLOYEE agrees that he will not either, for himself, or for any person, firm or corporation, directly or indirectly, either as employee, stockholder, owner, partner, agent, representative, or otherwise: . . .
b. For a period of one year after the termination of his employment for any cause whatsoever, engage or be financially interested in the business of selling merchandise, handled by the COMPANY, either in Butler, Pa., or any other city or town to which he may from time to time be transferred by the COMPANY or within twenty-five miles of said city or town . . . nor *502
c. At any time, whether during the term of his employment or after the termination thereof for any reason whatsoever, in any way
I. solicit, divert, take away or interfere with any of the customers, trade or business, or patronage of the COMPANY; or
II. divulge to any person or persons not connected with the COMPANY any of its business methods, forms, names and addresses of customers, or any of its trade secrets or confidential statistics, credit or other information of the same or different kind."
By letter dated August 9, 1948, addressed to the plaintiff's home office in Boston, Massachusetts, defendant resigned her employment with the plaintiff as of that date. About one month later she entered the employ of the owner of "The Fashion" shop, as manager of a competing retail business, selling women's ready-to-wear clothes, located two doors below plaintiff's store on South Main Street in Butler. Three women, of the five solicited by defendant, also left plaintiff's employ and were t aken on as saleswomen at The Fashion shop. Because of her contact with the retail trade in Butler over a long period of years defendant had a large personal following. Two thousand letters were sent to women of a selected list by the owner of The Fashion shop notifying them of defendant's change in employment to that of manager of his business. Defendant supplied some of the names for the list.
By the final decree in this case defendant was enjoined for and during the period of one year from September 7, 1948, (a) "From engaging in or being financially interested in the business of selling merchandise handled by the plaintiff company, either in Butler, Pennsylvania, or any other city or town within a radius of twenty-five (25) miles from the City of Butler; (b) From soliciting, diverting, taking away or interfering with any *503 of the customers, trade, business or patronage of the Markson Brothers Company; (c) From divulging to any person or persons not connected with the plaintiff company any of its business methods, forms, names and addresses of customers or any of its trade secrets or confidential statistics, credit or other information of the same or different kind; (d) From accepting employment from or performing any work for the Fashion Store in the City of Butler, Pennsylvania; (e) Or in any way during said period interfering with or diverting any business of the plaintiff company." It is not contended that defendant divulged to her new employer any "trade secrets or confidential statistics" or other similar information pertaining to plaintiff's business. And the question is whether by the terms of the written contract the decree of the lower court restraining the defendant from acting as manager of a competing business under the circumstances and from supplying her new employer with the names of her former customers at The Ladies Store, was proper.
When this defendant entered plaintiff's employ, she brought to the service of that company the skills, business experience and personal following which she had acquired during the twenty-five years of her continuous service in The Ladies Store under the former owner. The duties which she assumed under the new owner by the verbal contract were somewhat different in scope, but certainly not in kind from her former work in The Ladies Store. She gained nothing additional in training or experience in the few months of her unsupervised service with plaintiff prior to entering into the written contract in question. And on leaving she took away no more than she had brought to the plaintiff at the inception of her employment with that company. In this respect the present case resembles Iron City Laundry Co. v.Leyton,
Specific performance of a contract is of grace and not of right. Reynolds v. Boland,
Plaintiff's district manager testified that under the verbal contract of hiring it was contemplated that defendant's employment was to be "a permanent arrangement". Since, however, the term of the employment under the verbal contract was indefinite, the law presumes that the hiring was at will and, as such, was terminable at any time by either party. Trainer v.Laird *505 et al.,
This written agreement was in partial restraint of trade and a contract of this nature to be enforceable, must, as one of the essential elements, be founded upon a good and sufficient consideration. Cleaver v. Lenhart,
The decree in this case is fatally defective in that the contract which it seeks to enforce is invalid for want of a good consideration.
Decree reversed and bill dismissed at plaintiff's costs.