114 Neb. 496 | Neb. | 1926
This is a suit in equity to protect violated rights of plaintiffs under a contract by them to sell and by Ray S. Johnston to buy the business and property of the “Dr. E. R. Tarry Sanitarium.” The answer to the petition challenged jurisdiction in equity and contained pleas that the contract was fraudulent and void. The district court rendered a decree in favor of plaintiffs. Defendants appealed.
The subject-matter of the sale was formerly the property and business of E. R. Tarry, a practicing physician in Omaha and the proprietor of a sanitarium there. He was a proctologist — a specialist in the treatment of rectal diseases. He employed a secret method of treatment and by advertisements and cures during a period of years he built up an extensive and lucrative practice with patients from many places throughout the United States. He.employed as an assistant, for $150 a month, Ray S. Johnston, a physician with about a year’s practice at Waterloo, a village near Omaha. This arrangement was continued for nearly a year. In 1918 Johnston’s compensation was changed to 25 per cent, of the net profits of Tarry’s professional business but the duties of Johnston’s employment and his relationship to Tarry and to the sanitarium remained the same until Tarry died intestate March 20, 1920,
According to the terms of the. contract the property purchased by Johnston included the business of the “Dr. E. R. Tarry Sanitarium” and the use of that name; also the furniture, fixtures, surgical instruments and equipments, the advertisements, the Tarry method of treatment in the practice of proctology, the good will of the business as well as the leased location in rooms 240 and 242 on the east side of the second floor of the Bee Building in Omaha, now the Peters Trust Building.
A portion of the purchase price was $40,000, $500 payable in cash and the remainder in four equal payments due in one, two, three and four years, respectively, from date, evidenced by purchase money notes bearing annual interest at 6 per cent. In addition defendants agreed to pay 10 per cent, of the net profits for an ensuing period of five years.
Following are some of the conditions of the sale : Title to the purchased property to be retained by the sellers until performance by Johnston of his obligations; all business to be conducted in the name of the “Dr. E. R. Tarry Sanitarium,” correspondence to be thus signed and no.other name to be used in any of the advertisements; vouchers for
The widow and infant daughter of Tarry are plaintiffs and Johnston and Dawson are defendants.
Plaintiffs made the contract a part of the petition in equity and alleged in effect that defendants violated their contractual obligations, including those already outlined herein, absorbed for their own benefit part of the business of the sanitarium, retained a portion of plaintiffs’ share of the net profits, refused to pay their second, third and fourth instalments, evidenced by their notes, and were in default in the aggregate sum of $25,000. Plaintiffs offered to surrender the unpaid notes for cancelation. The petition also contained pleas that defendants are unable to respond in damages and that plaintiffs have no adequate remedy at law. There was a prayer for equitable relief generally, for restoration of the purchased property to plaintiffs, for retention of all payments of purchase money as liquidated damages, and for an injunction to prevent Johnston from practicing medicine within a radius of 150 miles from Omaha.
In substance the principal defenses were as follows: The action was not cognizable in equity. If plaintiffs were damaged they had an adequate remedy at law. By means of a fraudulent representation by Alpha Fay Tarry that the property was worth $40,000 defendants were induced to enter into the contract. It would never have been executed in the absence of fraud inducing the sale. The provisions for the forfeiture of payments on the purchase price were not necessary agreements for the protection of plaintiffs’ interests and were unenforceable. The restraints on
On the issues of fact and law the findings of the district court were in favor of plaintiffs. Under the decree possession and control of the sanitarium and of the business, property and interests connected therewith were restored to plaintiffs and the latter were permitted to retain the payments made on the purchase price as liquidated damages, but plaintiffs were required to surrender the unpaid notes for cancelation. Johnston is enjoined from practicing, medicine or surgery within a radius of 150 miles from Omaha so long as plaintiffs or their assigns carry on the business of the sanitarium. Defendants, however, were permitted to repossess the property and rights in controversy by paying the remainder of the purchase price within 20 days from November 3, 1925, the injunction in that event to be dissolved. It is from this decree that defendants appealed.
The first question for consideration is the jurisdiction of a court of equity to grant the relief sought, by plaintiffs. On this point defendants Insist there! is a total lack of proof that they are insolvent or that they are unable to respond in damages or that they cannot pay their notes. They argue, therefore, that the suit in equity is not maintainable. In this connection reference is made to evidence tending to show that defendants at various times paid in money items aggregating $24,724.26 on the purchase price. They take the position that a court of equity cannot properly forfeit that sum and at the same time restore the sanitarium and business to plaintiffs and enjoin Johnston from practicing his profession. This point, though ably presented, does not seem to be conclusive. Whether the case
Complaint is also made because the district court permitted plaintiffs to retain the payments of purchase money as liquidated damages. This provision of the decree is characterized by defendants as a forfeiture abhorrent to equity, though responding to a stipulation of the parties. The case made by plaintiffs does not depend upon the forfeiture, abandonment or annulment of any part of the contract. The relief sought is based on conditions to which Johnston had agreed. Equity was sought on the terms of the written instrument after he had received pecuniary benefits under it for a period which seemed at the date of its execution to be sufficient for full performance on his part.
A further argument of defendants is based on the contention that the restriction on the right of Johnston to practice medicine within a radius of 150 miles from Omaha is not necessary for the protection of plaintiffs’ rights, is violative of public policy, is an unreasonable restraint of trade and is an invasion of his privileges as a licensed physician. The good will of a professional business may be legally sold in connection with other property rights to which it is attached. In making a sale of that kind reasonable restraints on the practice of a profession may be imposed, if necessary for the protection of contractual rights. This is well established by precedent and the reasonable
There is a further contention that the contract is void because the restriction on Johnston’s right to practice his profession in the territory specified is without limit as to time. That informality does not necessarily destroy the contract. A reasonable period of restraint sufficient for the protection of plaintiffs’ rights was fairly implied from the entire instrument. So long as plaintiffs or their assigns shall carry on the business of the sanitarium is the period of restraint fixed by the decree. This was a proper condition on which equitable relief was granted to plaintiffs and was not the making of a contract for the parties. Moreover, the injunction was not absolute. Defendants, by paying the remainder of the purchase price, were permitted to retake
The relief granted responds to the contract. If the conclusions reached are correct, the position that plaintiffs are not entitled at the same time to the property, to the payments made, and to the injunction is untenable.
In all material respects the findings on appeal are the same as those of - the district court. Owing to the delay necessarily incident to the appeal the time in which defendants may pay the remainder of the purchase price, and thus repossess the property and rights in controversy with the injunction dissolved, is extended 20 days after the mandate is delivered to the clerk of the district court. With the time for payment thus extended the judgment is
Affirmed.