15 P.2d 319 | Utah | 1932
The plaintiff sued the defendant for damages for an alleged breach of a written contract, for an injunction to restrain defendant from engaging in the practice of medicine in Carbon county, Utah, for a period of four years from and after the date of the contract, and for other relief.
The case was tried to the court without a jury. The only damages claimed in the complaint is the sum of $5,000 stipulated for in the contract. Plaintiff does not allege that he has been or will be damaged in any manner or at all by reason of the alleged breach of the contract by defendant. At the close of his case in chief, plaintiff, in open court, waived his claim to damages and to other relief and stood upon his asserted right to injunctive relief. At the conclusion of the trial the court made findings of fact, conclusions of law, and entered judgment thereon dismissing the complaint and denying plaintiff any relief. Plaintiff appeals from the judgment. The appeal is upon the judgment roll alone without a bill of exceptions, so the evidence which the trial court heard is not before us.
The facts in the case by which this court must be controlled upon this appeal are contained in the findings made by the trial court. They are as follows:
That plaintiff and defendant are residents of Carbon county, Utah. That at Helper, Utah, on or about May 31, *358 1930, plaintiff and defendant entered into a written contract of which the following is a copy:
"Be it known:
"This agreement is entered into between Dr. M.C. Melrose, hereinafter known as Party of the first part, and Dr. F.H. Low, hereinafter known as Party of the Second Part, at Helper, Utah, this 31st day of May in the year of our Lord, 1930, to take effect July 1st, 1930.
"The party of the first part agrees to take in, introduce, and work with party of second part. Further agrees to rent adjoining room, share office equipment and waiting room, office girl and drugs, these to be located in the A.J. Stafford Bldg. The party of the first part shall, after consulting with party of the second part, determine all business policies, engineer all operations and see any or all patients deemed advisable. The management, as stated above, to rest with party of the first part for the first twelve months, then active business and professional policies are to be discussed, acted upon, and carried out by both parties.
"Party of the first part further agrees to give in return for services rendered by party of the second part, 20 per cent of all the moneys derived from the business of the practice of medicine in all of its branches, after all expense of drugs, laundry, office, help and incidental expenses pertaining to the maintaining of the office has been paid. After 12 months the 20% is to be increased to 27% for the next six months; then to 33% for the next six months. For the third year it shall be increased to 40% for the first six months in the fourth year to 45%, and from then on 50%. Even from the start of the contract the party of the second part is to be guaranteed a minimum of three hundred dollars per month.
"Party of the second part agrees to furnish some equipment at first, later to furnish equipment in proportion to his increase in percentage of the income. He further agrees to answer any and all calls, work unselfishly for the advancement of the parties of the agreement. He agrees to rent an adjoining room in the Stafford Building at the rate of $25.00 per month.
"The parties to the agreement both agree to allow at least 14 days each year for vacation. Each to take full responsibility while the other is absent.
"After 33% is reached the increase shall be graduated as stated provided party of second part shall produce and bring into the business that percentage, otherwise according to amount of business produced.
"Party of the second part agrees to pay to party of the first part the sum of five thousand dollars cash as damage, if party of the second *359 part, of his own free will and unprovoked by party of the first part, severs connections and sets up private practice in Carbon County within four years from the date of contract." (Signed and witnessed.)
That thereafter, on or about July 5, 1930, in accordance with said agreement, plaintiff and defendant together engaged in the practice of medicine in Helper, Carbon county, Utah, and continued together in said practice in said place to and including November 23, 1930. That on November 24, 1930, defendant severed connection with plaintiff and set up in the private practice of medicine at Hedper, Carbon county, Utah. And that, ever since said date, defendant, separate and apart from plaintiff and against the will and without the consent of plaintiff has practiced medicine and is now practicing medicine in Carbon county, Utah. That defendant of his own free will and unprovoked by plaintiff severed said connection with plaintiff and set up in private practice in Carbon county, Utah, within four years from the date of said contract.
There are other findings relative to certain issues raised by a counterclaim which defendant filed in the case, but since they in no wise relate to any matter involved in this appeal, they are omitted from the above statement of the facts.
Appellant's claim is that, as a matter of law, he is entitled under the facts above stated to the injunctive relief prayed for and hence that the judgment must be reversed. His argument is that there is a covenant implied in said contract, which is as much a part of the same as if it had been expressly stated therein, Cummings v. Nielson,
Assuming, but not deciding, that the contract is open to the construction which by his argument appellant would have this court place upon it, with respect to the implied restrictive covenant which he says it contains and to the stipulation for damages, he nevertheless is not 1, 2 entitled to prevail because his case is lacking in equity. It is lacking in regard to certain particulars which ought to be made to appear somewhere in the record, say in allegations of the complaint admitted by the answer, or in the findings of the trial court, or in the evidence in order *361
to move a court of equity to extend its arm to restrain Dr. Low from engaging in the practice of his profession. The writ of injunction is issued by the courts as a matter of grace and not because the applicant has a right to it. 32 C.J. 29; Leitham
v. Cusick,
JUDGMENT AFFIRMED. Costs to respondent.
STRAUP, ELIAS HANSEN, FOLLAND, and EPHRAIM HANSON, JJ., concur.
CHERRY, C.J., did not participate herein.