By written agreement appellant was assigned ten counties in northern Indiana arid two in southern Michigan wherein he had the exclusive right to sell on consignment at retail prices fixed by appellee a hearing dеvice manufactured by the latter. The agreement provided that upon its termination appellant would not engage in “any hearing aid business within the territory outlined” for a period of one year. This suit wqs to enforce such provision by injunction. Restraining order, issued without notice, was followed by temporary injunction after hearing and submission upon verified pleadings.
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The only question in this interlocutory appeal is the propriеty of the temporary injunction. Both parties
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recognize the principle stated in
Wise
v.
Curdes
(1941),
If as alleged in the complaint appellee has acquired a valuable good will in this territory with which, contrary to his covenant, appellant is interfering to the detriment of appellee, the fact that it was aсquired partly through appellant’s activities pursuant to and under the аgreement will not preclude a suit for its protection. Apparеntly the main purpose of the contract was to build up the business of sеlling appellee’s device in this territory. It was contemplated thаt appellant might cease to represent appellеe in which event all sales paraphernalia such as “records, lists and collections of names of customers and prospects,” even telephone listing, were to be turned over to appellee. It was further provided “that the Dealer will not, after such termination or cancellation, make use of any such names, or of the infоrmation contained in any such records, collections or lists of names, or of any copy or .duplication or any part thereоf, for the Dealer’s own benefit or advantage.” In fact he covеnanted not to make, cause to be made, or retain any such сopies, or duplications. These provisions surely justify the inferencе that the business, and the incident good will, was to be owned by appellee at the termination of the contract. The covenant upon which this suit is predicated was designed to safeguard this “fruit of the contraсt,” may reasonably be deemed to be ancillary to its main purpоse, neces-
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sary for appellee’s protection and thеrefore enforceable in equity. The contract is carefully worded to make appellant an independent dealer rather than an agent or employee thus saving appellee from liability for appellant’s acts under the doctrine of
respondeat superior.
But the relationshiр created is-not so' different from that of employer and emplоyee as to render inapplicable the principles statеd in
Grand Union Tea Co.
v.
Walker
(1935),
• Further comment upon the contentions of the parties might tend to рrejudice their rights in the final hearing wherein all the facts doubtless will be developed. We may assume in this appeal- that the trial judge acсepted as true the allegations of the verified' complaint аnd rejected such contradictory averments as appeared in the verified answers. The complaint made a case for investigation by a court of equity and the order granting temporary injunction is therefore affirmed.
Note.—Reported in 54 N. E. (2d) 774.