187 Mich. 369 | Mich. | 1915
On the strength of the following agreement, complainant filed his bill of complaint to enjoin the defendant from carrying on the business of selling shoes in the village of Harbor Springs in violation of the agreement:
“Harbor Springs, Mich., 1-24-1905.
“It is agreed between Max Weiss and J. F. Stein to sell the shoes and rubbers to Max Weiss at 75c on the dollar and the same to be taken out inside of this week. Terms $100.00 a month every 1st of the month.
“Max Weiss.
“J. F. Stein.
“Í agree not to keep shoes or rubbers of any kind at my store. “J. F. Stein.”
The only question discussed by appellants in their brief is that complainant failed to establish, by a preponderance of the evidence, that defendant ever agreed for a valuable consideration to quit the business of selling shoes. The burden of establishing such an agreement as complainant claims was upon him. If the agreement not to re-engage in the business was made at the time of the sale, the consideration paid for the shoes was a sufficient consideration to support both the purchase and the agreement. Hubbard v. Miller, 27 Mich. 15 (15 Am. Rep. 153); Weickgenant v. Eccles, 173 Mich. 695 (140 N. W. 513).
Both complainant and his wife testified positively that the agreement to not re-enter the business of selling shoes was a part of the original agreement, and was inserted in the agreement at the timé it was made. The defendant and his wife were just as positive that the provision was inserted in the contract a week or ten days after the sale was made and the goods delivered.
In view of this, we think the chancellor reached the right conclusion, and the decree will be affirmed, with costs of both courts to complainant.