58 So. 913 | Ala. | 1912
The purpose of the bill, exhibited by appellant against appellee, is to enforce the specific performance of the contract set out below, by means of the restraining effect of injunctive process. The contract made was in writing and is as follows: “Pell City, Alabama, October 19, 1910. This is to certify for a consideration of $1,500.00 I have sold and delivered to T. J. Smith my livery outfit that consists of 8 horses, all buggies, surreys, hacks, wagons, harness of every description, in fact all that belongs to the stable, includ
It is contended that the vendor (Webb) had breached before the bill was filed, and was then breaching, the contract in that feature (italicized above), whereby he obligated himself to refrain from engaging in the livery business, etc.
The contract is not void as in restraint of trade. — 2 Beach on Contr. § 1575; Tuscaloosa Ice Mfg. Co. v. Williams, 127 Ala. 110, 28 South. 669, 50 L. R. A. 175, 85 Am. St. Rep. 125; McCurry v. Gibson, 108 Ala. 451, 18 South. 806, 54 Am. St. Rep. 177; Moore v. Towers Hdw. Co., 87 Ala. 206, 6 South. 41, 13 Am. St. Rep. 23; Robbins v. Webb, 68 Ala. 393; Arnold & Co. v. Jones Cotton Co., 152 Ala. 501, 44 South. 662, 12 L. R. A. (N. S.) 150; Harris v. Theus, 149 Ala. 133, 43 South. 131, 10 L. R. A. (N. S.) 204, 123 Am. St. Rep. 17. The omission from such contracts of a limit as to time of-duration does not affect them if they are otherwise valid. — Harris v. Theus, supra; McCurry v. Gibson, supra; 92 Am. Dec. pp. 754, 755, note.
As appears from the instrument itself, the vendor was, when the sale was made, engaged in the livery business at Pell City. While there is in the instrument no express provision for the sale of the livery business as such, the stipulations therein with respect to the con
In the Construction of contracts the judicial duty is to ascertain the intent of the parties, where, of course, that intent is not so clearly expressed as to exclude the necessity for construction. In order, where construction is necessary, to ascertain the intent of the parties, the circumstances surrounding them and the object proposed by their engagement should be considered. Parol
The particular feature of the contract to be construed is this: “I further agree for the above consideration not to engage in the livery business in opposition to said T. J. Smith in Pell City.” Whether the breach charged by the vendee may be sustained depends, primarily, upon the character and measure of restraint this ■provision imposed upon the vendor; and, secondarily, upon the resolution of the issue of fact as to the vendor’s conduct in respect of the livery business, in Pell City, with which he was later connected.
Whether the intent of the parties was that the vendee should not engage in the livery business in his own name at that place, or whether he should not contribute by his services, presence, and prestige to the conduct of such a business owned by another, are questions arising from the terms employed in the provision, and make the true meaning equivocal, and hence present a case calling for the full discovery of the surrounding circumstances existing when the contract was made. — Corwin v. Hawkins, 42 App. Div. 571, 59 N. Y. Supp. 603.
It may be assumed that, since the law does not look with favor upon restrictions against competition, tending to monopoly, though upholding such contracts when not in general in restraint of trade, contracts restrictive of the right to engage in business of a particular kind and in a particular place will be strictly construed. —Eastern Express Co. v. Meserve, 60 N. H. 198.
When the contract was made, the vendor had been engaged for three years or more in the livery business at Pell City. While there is some conflict in the evidence
Approximately three months after the sale to this vendee, one J. C. Alverson, who was then engaged in the livery business at a point about five miles from Pell City, decided to establish a livery business at Pell City; his notion being to more conveniently serve his customers in that way than by sending conveyances from his original stand some miles away.
It appears, from the whole evidence, without any real doubt, that Webb Avas the general manager of Al-Arerson’s Pell City stable; that he had no interest in the business; that his contract AAras for Avages at $46 per month; that he had general control of the business, apart from the fixing of a schedule of prices by the oavmer; that he took an active part, as the representative of Alverson, in the setting up of the business, the rent
So far as adjudications made in. other jurisdictions are concerned, it may be admitted that either response to the question could be rested upon, might find suggestion in, and some measure of support from, decisions based upon som&what similar conditions of contract and circumstances attending it. A large number of these
Under this contract, interpreted in the light of the circumstances in evidence, our conclusion is to the contrary.
The common intent of the parties, in the clause in question, was to afford and assure the vendee, as far as the vendor was concerned, an unopposed pursuit of the business sold to the vendee. For that he paid a valuable consideration. In setting down this intent in the instrument, there is no expression of limitation that the business against the engaging in which the vendor bound himself should be a livery business otonecl by the vendor. The circumstances surrounding the parties, in connection with the letter of the contract, compel the conclusion that the parties intended that the vendor should so far refrain from such a controlling relation and activity with an opposition business of that character as would naturally result in bringing about the very condition against which they expressly stipulated. — Nelson v. Johnson, 38 Minn. 255, 36 N. W. 868.
There is a patent distinction, in such cases, between a mere servantship in a business and the managership thereof. One is subordinate — inconsequential in effecting the general popularity and success of the enterprise • — while the other is dominant, controlling, influential, in its appeal to public favor, and hence in its inevitable effect upon the success of the business.
In Jefferson v. Markert, 112 Ga. 498, 37 S. E. 758, a similar question was presented, though there the sale included good will by express stipulation. The vendor
In Meyer v. Labau 51 La. Ann. 1727, 1732, 26 South. 463, the question Avas likewise resolved, viz., that interest in the competitive business was not a sine qua non to a Anolation of a Aralid contract not to engage in a competitive business.
Our conclusion does not accord Avith that prevailing beloAV, viz., that there was no breach, in the particular indicated, of the contract by Webb.
That incident (to the main object) feature of the bill, touching the alleged failure of the vendor to deliver certain chattels, is not sustained in the proof. The failure of the complainant to carry the burden in this incidental particular does not, of course, affect his right to relief consistent with the major purpose of the bill.
From the evidence it appears that Webb was engaged in the livery business, in violation of his contract with complainant, for 30 days; and that during that period complainant was damaged in the sum of $100.
The decree of the chancellor is reversed, a decree Avill be entered here granting the relief to which complainant is entitled as indicated. The evidence on the matter of damages suffered in consequence of breach by Webb does not afford sufficient data from Avhich any amount
Sever sed and rendered.