183 A.2d 287 | Conn. Super. Ct. | 1962
This action seeks an injunction enforcing a restrictive covenant in an employment contract in which the defendant agreed not to engage in the real estate business within the town of Coventry and its vicinity for two years after the termination of the contract. The claim for damages was abandoned.
"If upon an inspection of the contract, it appears that the restriction as to time and space does not go beyond what is necessary for the protection of the other party to the contract, the contract upon its face is valid." Milaneseo v. Calvanese,
"In this case the burden was upon the defendant, in order to avoid the obligations of the contract, to set up in [her] answer some facts or circumstances whereby the contract became unlawful." Ibid. The defendant has properly assumed this burden in her pleading.
In oral argument concluding the trial, counsel narrowed the issues here to two: (1) the factual question of which party breached the contract and (2) whether the area included in the restrictive covenant was unreasonable as to size.
As to the question of fact, defendant's counsel conceded that she had begun a real estate business before the issuance of the preliminary injunction here, and intends to continue it unless prevented from doing so by action of this court. The evidence does not support a finding that any of the allegations *337 set forth in the special defense is established, and a breach of contract by the plaintiff is accordingly not shown to exist.
"This is a contract in restraint of trade. The test of its validity is the reasonableness of the restraint it imposes. . . . To meet this test successfully, the restraint must be limited in its operation with respect to time and place and afford no more than a fair and just protection to the interests of the party in whose favor it is to operate, without unduly interfering with the public interest." Mattis v. Lally,
There is no unwarranted interference with the public interest. The public is not to be deprived of the defendant's services as a real estate agent except in the area where the plaintiff is offering the same kind of service. Mattis v. Lally, supra, 56;Lampson Lumber Co. v. Caporale, supra, 684.
Since the defendant is threatening, indeed, had begun, a breach of the restrictive covenant, "there can be no question that the plaintiff is entitled to an injunction restraining the breach, irrespective of whether the damage [he] will suffer is great or small." Lampson Lumber Co. v. Caporale, supra, 685. "The defendant's claims that the plaintiff failed to prove irreparable damage and that he had an adequate remedy at law are of no avail. Irreparable damage would inevitably result from a violation of the defendant's promises." Mattis v. Lally, supra, 56.
The defendant claims the restriction as to place is too indefinite. At the trial, the plaintiff described his business as including the towns of Mansfield, *338
Willington, Tolland, Bolton, Andover and Columbia as well as Coventry, and this area appeared to be tacitly assumed by the parties as the restricted territory. See also the memorandum on the temporary injunction, which included all of these towns except Tolland. Coventry borders each one of the other towns named. Hence it would be difficult to imagine how they could be more closely in "its vicinity," as that phrase is used in the contract. See "vicinity," Webster's Third New International Dictionary (1961); 92 C.J.S. 1006. In Roessler v. Burwell,
In Timmerman (sic) v. Dever,
No issue was raised here as to the reasonableness of the time restriction of two years, nor could there be. Mattis v. Lally, supra (five years); TorringtonCreamery, Inc. v. Davenport, supra (two years);Lampson Lumber Co. v. Caporale, supra (so long as the plaintiff continues in the business); May v.Young, supra (two years); Roessler v. Burwell, supra (one year); Chandler, Gardner Williams,Inc. v. Reynolds, supra (ten years); Timmerman v.Dever, supra (ten years). Since the restriction here confined itself only to that "vicinity" already held as a matter of fact to be limited to that in which the plaintiff operates his business; Mattis v. Lally, supra; Torrington Creamery, Inc. v. Davenport, supra; Roessler v. Burwell, supra; Chandler, Gardner Williams, Inc. v. Reynolds, supra; and in which the defendant had special knowledge of the business of the plaintiff; Torrington Creamery, Inc. *340 v. Davenport, supra, 520; it is not unreasonable in fact or law.
The defendant relies heavily upon Vick RealtyCo. v. Fassett,
Nesko Corporation v. Fontaine,
"The underlying purpose of the defendant in entering into the agreement was to continue thereafter in the employment of the plaintiff at a mutually agreeable salary; the benefit offered him was such a continuance, in return for which the plaintiff was to receive his services and the benefit of the restrictive covenant in the agreement." Roessler v. Burwell,
supra, 293. "To permit a party who has voluntarily entered into such an agreement, for a valuable consideration perhaps in large part based on it, to escape the consequences of his acts, as is illustrated in this case, smacks of unfairness and savors of an encouragement to dishonesty." Beit v. Beit,
The plaintiff has kept his bargain. Let the defendant do likewise.
A permanent injunction shall issue enforcing paragraph 7 of the contract, enjoining the defendant from entering into business of soliciting persons to buy, sell, rent or lease real estate for a period of two years after 16 May 1961 within the towns of Coventry, Mansfield, Willington, Tolland, Bolton, Andover and Columbia or any of them.