43 N.Y.S. 339 | N.Y. App. Div. | 1897
The purpose of this action is to obtain an injunction restraining the defendant from engaging in the provision business and in the manufacturing of bolognas or sausages, or trafficking therein within a radius of 450 miles of the city and county of New York for a period of ten years from the 17th day of March, 1893. The complaint alleged inter alla that heretofore, and on March 17, 1893, the plaintiffs and the defendant entered into a written agreement whereby the defendant sold and transferred to the plaintiffs and to
By stipulation at the trial the agreement was made a part of the complaint. The defendant answered, denying certain allegations of the complaint, and for an affirmative defense averred that the plainr tiffs had violated the terms of the agreement and that the same had been rescinded by acts of the parties and was no -longer in force. ;,
In the disposition of the questions presented by this appeal, it is not necessary to refer more specifically to the agreement itself than we have already done, except as will be hereafter noted. The execution of the agreement is admitted, the violation of its terms by the defendant is not disputed, assuming it to be still in force. We are, therefore, to consider the question as to what relief, if any, plaintiffs were entitled to, upon the case- made by the complaint. By the twelfth clause of the agreement defendant engaged himself not to “ enter into any other business or enterprise, or become in any way or manner interested in any other business without consent in writing of the parties of the second part (plaintiffs), their successors or assigns, first had and.obtained.”
“ Thirteenth. And the party of the. first part further covenants and agrees that he will not enter into any provision or sausage or bologna business, whether carried on by a natural person, corporal tian, joint stock company, or any other person or persons, within a radius of four .hundred and fifty miles of the city and county of Hew York, Within a period of ten (10) years from the day of the date hereof, either as superintendent, director, manager, officer, agent, employee or employer, or in any other individual or representative capacity whatsoever. And. in the event of a breach of the covenants hereof by the party of the first part, he will pay to the parties of the second part, their successors or assigns, the sum of five thousand dollars ($5,000), which is hereby covenanted shall be the liquidated and agreed damages for a breach of said ■ covenants, and, in addition thereto, forfeit all rights, privileges and emoluments under this contract.”
The court below held that plaintiffs were -not entitled to any equitable relief as against the defendant. This ruling is now sought to be supported upon the ground that plaintiffs having fixed the penalty which should attach in the event of a breach of the agreement, they are limited to that measure of indemnity and are
This case, in all essential features, is governed by that of Diamond Match Co. v. Roeber (106 N. Y. 473). There, as here, the agreement was not to engage in business which would bring the defendant into competition with plaintiff in the business which the former had sold. There, as here, there was a covenant and stipulation for liquidated damages in the event of a breach of the contract by the defendant, and the point was made that the remedy to enforce the clause for money damage was exclusive of any other. Such claim was pronounced unsound by the court, and the equitable relief by injunction granted by the court below was upheld. Numerous authorities lead to a like result. (Diamond Match Co. v. Roeber, 35 Hun, 421; Phœnix Ins. Co. v. Continental Ins. Co., 87 N. Y. 400.)
It is quite clear, from a consideration of all the clauses of this agreement, that plaintiffs sought to get the entire benefit of defendant’s business which it purchased and to secure the services of defendant himself in connection with it. It was the performance of the entire contract that was contemplated, and not a mere stipulation for damages for its breach, in consequence of which the damages stipulated for would not secure the result sought to be secured by its terms, and it is on account of this feature that equity lays hold of the agreement and enforces it. (Lewis v. Gollner, 129 N. Y. 227; Francisco v. Smith, 143 id. 488; Phœnix Ins. Co. v. Continental Ins. Co., supra.)
There is another feature of this case which makes it still stronger. The complaint alleges that the defendant is wholly insolvent, irresponsible and unable to respond in damages, and that an action at law would, therefore, be an inadequate remedy. If the remedy was limited to the sum provided as damages, and it should appear that the defendant was wholly unable to respond therein, it is quite
It follows that the judgment appealed from should be reversed and a new trial granted, with costs to abide the event.
All concurred.
Judgment reversed and new trial granted, costs to abide the event.