346 Mass. 625 | Mass. | 1964
This is a bill in equity in which the plaintiff seeks to enjoin the defendant from engaging in employment in violation of the terms of an agreement.
The case was referred to a master whose findings include the following: In 1957 the defendant acquired stock in the plaintiff and became its treasurer and director. At the
Following the execution of this agreement, the defendant entered into the management of the plaintiff’s automobile supply store in Peabody. Early in 1961, while so employed, the defendant started misappropriating checks sent to the plaintiff in payment of accounts receivable. These misappropriations amounted to approximately $7,500. The defendant also misappropriated about $3,000 in cash. The defendant admitted these misappropriations. Subsequently the parties adjusted their differences, and mutual releases were exchanged. The plaintiff released the defendant with respect to all matters except those arising out of the covenant not to engage directly or indirectly in a competing business within a twenty-five mile radius of Peabody for a period of five years.
About July 1, 1962, the defendant went to work for Aga-wam Auto Supply Co. (Agawam). Agawam, which is owned by the defendant’s brother, is engaged in the automobile supply business in Ipswich.
The master found that the covenant not to compete was reasonable both as to time and area. . He further found that by reason of misappropriations on the part of the defendant amounting to $10,500, the defendant had “caused his employment to be terminated” on May 8,1961; and that the defendant is presently employed in an automotive parts and supply business similar to that of the plaintiff at a
Following the confirmation of the master’s report and the denial of certain motions of the defendant, a decree was entered permanently enjoining the defendant from working for Agawam or any others engaged in the automotive parts, supply and service business similar to that of the plaintiff. The defendant appealed.
1. The defendant filed numerous objections (which became exceptions) to the report. In these he objected because the master failed to include in his report certain evidence with respect to various findings, and requested the master to make “brief, accurate and fair” summaries of portions of the evidence.
2. The defendant presented a motion to amend his answer,
3. The defendant argues that the decree enjoining him was too broad in one respect and we are of opinion that there is merit in this contention. The decree enjoins him permanently from competing with the plaintiff within the twenty-five mile radius. This, as the plaintiff concedes, went beyond the terms of the contract, which protected the plaintiff from competition for five years. The defendant left the plaintiff’s employ on May 8, 1961, and the injunction should run for five years from that date, which is until May 8, 1966. The final decree, therefore, should be modified to so provide, and, as so modified, it is affirmed with costs of appeal.
So ordered.
The following is typical of all of these objections and requests “1. The defendant objects to the Master’s Beport because of his failure to include in his report evidence to show that the defendant at no time severed his employment with the plaintiff, United Auto Supply Co., Inc. but to the contrary, the said United Auto Supply Co., Inc. acting through Benjamin Hankin, used fraudulent means and coercion and forced the defendant, John E. Amaro, to leave his employment with the plaintiff. Therefore, the defendant hereby requests a brief, accurate and fair summary of so much of the evidence as is necessary to enable the court to determine this question. ’ ’
The proposed answer set up various matters by way of counterclaim, in substitution for the counterclaim contained in the original answer. The master stated in his report that the defendant offered no evidence in “support of his prayers” in his counterclaim.
