Ruggiero v. Salomone

248 Mass. 237 | Mass. | 1924

Pierce, J.

This is a bill in equity to restrain the defendant from carrying on or conducting in any capacity, either directly or indirectly, whether as sole proprietor, a member of a partnership, or as a shareholder, or employee, a hair dressing parlor or barber shop at No. 104 Summer Street, Boston, or anywhere else within a radius of one mile of No. 48 Summer Street in said Boston, for a term of five years from October 25, 1922.

Upon the filing of the answer, the case was referred to a master. His report, to which both parties waived the right to file objections, in substance shows that for some years before October 25, 1922, the defendant had a barber shop at No. 48 Summer Street, Boston; that on that day he sold it to the plaintiffs for $7,000, by a bill of sale of all the right, title and interest of the defendant in the barber shop, “ including good will ” and the enumerated tangible stock in trade; that the bill of sale under seal also contained a covenant that the defendant would “ not engage in the barber business either as an owner or part owner, within a radius of one mile of No: 48 Summer Street, Boston, for a term of five years from date of this instrument.” The report further discloses that the defendant, without complaint of the plaintiffs, worked as a floor director and journeyman barber at Filene’s barber shop from April, 1923, until July 1, 1923; that since July 2, 1923, he has been at work at No. 104 Summer Street at a shop which is distant three hundred feet east of the plaintiffs’ shop; that the shop at No. 104 Summer Street and that of the plaintiffs are to some extent-competitors; that the shop at No. 104 Summer Street was owned by Polcari and Genneally; that they quarreled, and Polcari wished to sell and the defendant, desired to buy his interest; that Polcari and the defendant unsuccessfully negotiated with the plaintiffs to see on what terms the plaintiffs would allow the defendant to enter the business; that when the defendant left Filene’s and went to No. 104 Summer Street, Polcari left No. 104 Summer Street and took the defendant’s place at Filene’s at $28 a week; that Polcari pays the defendant $20 a week and receives one half of the profits of the business; that the defendant has not bought the interest of Polcari but would quickly come to terms if this litigation was out of the way; that if the defendant shall become part owner at No. 104 Summer Street and be known to be owner it will divert a substantial part of the plaintiffs’ customers; that the defendant is a man likely to impress himself favorably upon customers, be noticed and remembered by them, and would attract customers generally to any shop in which he was owner or manager; that some of the defendant’s personal customers at the old shop have already followed him to the new one, and that this has taken away trade that belonged to the plaintiffs and has impaired their good will.

The defendant, in support of his appeal, contends that the decree is inequitable in the extent of territory within which he is prohibited from working at his trade. He makes no claim that the decree improperly enjoined him from engaging in the barber business, as owner or part owner, within a radius of one mile of No. 48 Summer Street, Boston, for a term of five years from October 25, 1922; and he does not dispute the propriety of the decree enjoining him from doing any act or thing to injure, impair or interfere with the plaintiffs’ good will in the barber shop now conducted at No. 48 Summer Street, Boston.

In view of the finding of the master that the personality of the defendant would attract customers generally to any shop in which he was owner or manager, and upon consideration of the fact that personal customers have followed him from the old to the new shop to the impairment of the good will of the old shop, we think it cannot fairly be said that the decree was wrong in applying the same measure of space and time to the defendant in his work as a journeyman or volunteer assistant, which the defendant and plaintiffs agreed upon as adequate when applied to the protection of the business against the influence which they supposed would accompany and flow from the whole or part ownership of such a shop by the defendant. Rosenberg v. Adelson, 234 Mass. 488. Old Corner Book Store v. Upham, 194 Mass. 101.

Decree affirmed.