L. Jеrry Spengler has appealed from a temporary injunction restraining him as a former employee frоm competing with the Pitluk Advertising Company, a partnership composed of Jaclc-N. Pitluk,- Sr.,'Jack N. Pitluk,-Jr., and Louis H. Pitluk.' The question .presented is whether or' not the trial judge abused the' discretion' vested' in him by law in granting- the tempdrary injunction. While aрpellant ,has elected tó file points and some of 'them raise questions of pleading and variance bеtween the pleadings and proof, it seems that--the case was rather fully developed upon- facts, аnd that none of these points relating to procedure is controlling as to the disposition of this appеal. A factual review is called for to determine the issue of abuse of discretion.
The evidence discloses that Pitluk Advertising Company has been engaged in the general advertising business in San Antonio, Texas, for more than thirty years. On February 24, 1950, Jack N. Pitluk, Sr., act *471 ing for the Company, entered into an employment contract with L. Jerry Spe.ngler, containing the restrictive covenant which is the basis of this litigation. At that time the advertising company was a partnershiр owned by Jack N. Pitluk, Sr., and Jack N. Pitluk, Jr., the latter owning a twenty-four per- cent interest in the Company. In November of 1952 Jaсk N. Pitluk, Sr., in accordance with a prior agreement which he had with his son Louis Ef. Pitluk, transferred. to him a twenty-four per cеnt interest in the advertising company, and the latter thereupon became a member of the partnership firm. On April 15, 1953, Spengler left the employment of the Pitluk Company and shortly thereafter opened up an advertising businеss of his own, under the name and style of “Spengler Advertising Agency.”
The restrictive covenant relied upon by plaintiffs below was contained in a letter dated February 24, 1950, written by Jack N. Pitluk, Sr., and addressed to Spengler who endorsed his acceptance-of .the same upon the letter. The clause reads as follows :
“Because we wаnt you to be a part of us, we hope a permanent part of us, from the very outset we want to take "you into all of our confidences and all of our conferences, especially where radio is affected and for that reason, we must have your signed agreement that you will not associate yourself with any othеr advertising agency or with any firm competitive to us, for Bexar County, for a period of one year after you leave our organization, for any reason, in exchange for our taking you into our organization, your knowing аll of our methods, and your close contact with all of our accounts. This is being agreed upon by us and to be initiаled below by you.”
It appears that the word “for” was substituted for the word “in”’ by a pen and ink alteration of the phrase which was originally typed as follows, “with any other advertising agency or with any firm competitive to us, in Bexar County.” :Wе do not regard the alteration as material. ■ The meaning of the phrase is essentially the same regardless of which preposition is used, and appears that the Spengler Agency was competitive with the Pitluk Comрany both “in” and “for” .Bexar County. iWe are further unable to agree with appellant’s contention that Spenglеr did not violate the covenant by organizing and operating the Spengler Agency. Although such agency was solely owned by Spengler and had no employees, it was nevertheless another advertising agency compеtitive with the Pitluk Company.
Appellant’s primary attack upon the injunction is based upon the change in membership of the Pitluk partnership. There is no contention that the restriction was unreasonable as to time or plаce, other than that predicated upon, the substitution of the word “for” for the word “in” in the clause, which contention has been disposed of heretofore. It is well settled that “every one has a right to select and detеrmine with whom he will contract,” Arkansas Valley Smelting Co. v. Belden Mining Co.,
We hold that the trial judge did not abuse his discretion in granting the interlocutory order and the judgment appealed from is accordingly affirmed.