Angelica Jacket Co. v. Angelica

• Decision Date: 11 December 1906
• Citation: 98 S.W. 805,121 Mo. App. 226
• Parties: ANGELICA JACKET CO. v. ANGELICA.
• Court: Missouri Court of Appeals

98 S.W. 805

121 Mo. App. 226

ANGELICA JACKET CO. v. ANGELICA.

St. Louis Court of Appeals. Missouri.

December 11, 1906.

1. CONTRACTS — VALIDITY — RESTRAINT OF TRADE.

A contract whereby, on sale of their business, the sellers agreed not to engage in the manufacture of jackets and aprons, for men engaged in certain trades, for sale in any of the states and territories in which they had been previously sold, was not void as in restraint of trade.

2. SAME—BREACH OF CONTRACT.

Where one who had sold her business and agreed not to enter into the manufacture of jackets procured a lease of the premises in which she had formerly carried on the business and had signs painted and placed so as to

lead former customers to believe the old business was continued, and afterwards sold the business to the lessor and she remained in possession as manager and saleswoman, there was a breach of the contract and not a mere following of her trade as a jacket maker for wages.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by the Angelica Jacket Company against Theresa D. Angelica. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

T. J. Rowe, for appellant. Stern & Haberman, for respondent.

BLAND, P. J.

Under the name of the "Angelica Company," defendant, at the city of St. Louis, prior to December 16, 1903, was engaged in the business of manufacturing jackets, aprons, etc., for men engaged in certain trades. She had built up a profitable trade in said city and a considerable mail order trade in a number of states and territories, and her goods, as the product of the Angelica Company, had gained a reputation of value. On December 16, 1903, defendant entered into the following contract with A. J. Levy:

"This agreement made and entered into by and between A. J. Levy, hereinafter called `Buyer,' party of the first part, and Mrs. T. D. Angelica, Everisto D. Angelica and Americo D. Angelica, hereinafter called `Sellers,' parties of the second part, witnesseth: That whereas the sellers have heretofore been engaged in the hotel and restaurant linen supply business and of the manufacture and sale of such supplies, as well as of caps, jackets, aprons and trousers for bartenders, barbers, butchers, cooks, bakers, waiters, dentists, porters, etc., under name and style of Angelica & Co., and more lately under the name and style of T. D. Angelica, and whereas they have conducted the said business in the city of St. Louis and sold goods in the states, cities and territories hereinafter mentioned and have built up an extensive business in the said states, cities and territories; and, whereas, the sellers have offered to the buyer all of the stock, machinery, fixtures, horse and buggy, lease of No. 112 North Ninth street, in the city of St. Louis, and the entire said business, together with the good will thereof, for the price and sum of twenty-five hundred dollars ($2,500); and whereas the sellers have offered to the buyer as a part consideration for the said twenty-five hundred dollars ($2,500) to remain out of said and similar business for a limited period of time in the places and states where said business has heretofore been conducted or goods sold; and whereas, as a part consideration of said purchase price, the sellers have also agreed to assign to the buyer the exclusive right to use the name `Angelica' in said or similar business; and whereas the said buyer has accepted said offer for said price and the sum of twenty-five hundred dollars ($2,500). Now, therefore, it is mutually agreed and understood by and between the parties hereto.

"(1) That the said sellers hereby acknowledge the receipt of said twenty-five hundred dollars ($2,500) to them, in hand paid by the buyer.

"(2) That the sellers hereby sell, assign, transfer, set over and convey to the buyer all of the stock, of which an inventory was taken on the fourteenth day of December, 1903, together with the machinery, fixtures, horse and wagon, lease of No. 112 North Ninth street, together with the good will of said business and the exclusive right to use the name Angelica, for the purpose of conducting said business hereafter, and give and grant to the buyer or his assigns the right to use such name in said business, either with the initials T D. or in connection with his own name or that of any other person, or to use the same in or as part of the name of any corporation to be organized for the conduct of said business.

"(3) The sellers agree that for a period of nine years from the date hereof, they will not, either in their own behalf or in the employ of another, directly or indirectly, either jointly or severally, engage in the character of business hereby sold to the buyer, or in any like business, either in the city of St. Louis, state of Missouri, or in any of the following named states and territories, the same being states and territories in which business has been heretofore done by the sellers, and in which the sellers have built up and acquired a valuable good will which is hereby transferred to the buyer as above set out, to wit:

                Arkansas,            Nebraska
                Alabama,             New Mexico
                California,          New York
                Colorado,            N. Dakota
                Florida,             N. Carolina
                Georgia,             Ohio,
                Idaho,               Oklahoma Territory,
                Indiana,             Oregon,
                Indian Territory,    Pennsylvania,
                Iowa,                South Carolina,
                Illinois,            South Dakota,
                Kansas,              Texas,
                Kentucky,            Utah,
                Louisiana,           Virginia,
                Minnesota,           Washington,
                Missouri,            Wyoming.
                Mississippi,
                

"(4) The sellers transfer all of the foregoing and guarantee the same to be free and clear from all incumbrances and claims of any kind and character whatsoever. The sellers further agree, undertake and promise to secure the consent of the landlord to the assignment to the buyer of the lease of the premises No. 112 North Ninth street, in the city of St. Louis.

"(6) The said Mrs. T. D. Angelica agrees to remain with the buyer for a period of three months from the date hereof if her health permit, assisting in said business, in consideration of her receiving rent free during said period, the second floor of the premises No. 112 North Ninth street.

"(7) In consideration of all of the foregoing the undersigned sellers jointly and severally promise and guarantee to the buyer and his assigns that each and all jointly and severally shall, and will, fully perform and jointly and severally abide by, comply with, and carry out the terms of this agreement."

An assignment of the lease referred to in the contract to Levy was procured and he immediately took possession and embarked in the business under the name of the "Angelica Company," and continued therein until April 24, 1904, when plaintiff corporation was formed and took over from Levy, by assignment, the lease and business and has ever since carried on the business under the name of the "Angelica Company," having over its door the sign "Angelica Company." The lease of No. 112 N. Ninth street expired July 21, 1904, and plaintiff, being unable to negotiate a renewal thereof, moved its business into No. 116 N. Ninth street, about 25 feet north of No. 112. The evidence shows that defendant forestalled plaintiff in procuring a renewal of the lease on No. 112, and procured a lease of the premises for herself and immediately commenced the manufacture of jackets, etc., under the style of "T. D. Angelica Embroidery Company and the Western Jacket Company," and had her sign so painted and set up in front of her place of business as to lead the public to believe she had resumed her former business at the old stand. After running the business for a few months, defendant sold out to J. H. Vette, the owner of the building, but was employed by Vette to manage the business. The suit is by bill in equity to enjoin the defendant from engaging in a business like that she sold to Levy. The answer was a general denial. The issues were submitted to Hon. Moses N. Sale, judge of the circuit court, who found for plaintiff. Defendant appealed.

The evidence is too voluminous to be incorporated in an opinion. A full examination of it has led us to concur in the following comment on the evidence, set out in an opinion filed in the case by the learned circuit judge, to wit: "The evidence shows that she has trampled the contract under her feet, and has knowingly and willfully disregarded, wherever it was possible for her to do so, every stipulation of the contract made by her. There is absolutely no evidence in the case worthy the name, tending to show that any advantage was taken of her or her sons in the making of the contract."

In respect to the law of the case, we approve and adopt the following from the opinion of Judge Sale:

"In the case of the Diamond Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419, 60 Am. Rep. 464, decided in 1887, the opinion of the court was delivered by Andrews, J., who stated that one of the questions presented in the case was whether the covenant of the defendant contained in the bill of sale executed by him to the Swift, etc., Company on the 27th of August, 1880, `that he shall and will not at any time or times within 99 years, directly or indirectly, engage in the manufacture or sale of friction matches, excepting in the capacity of agent or employé of said company, within any of the several states of the United States of America or in the territories thereof, or within the District of Columbia, excepting and reserving, however, the right to manufacture and sell friction matches in the state of Nevada and in the territory of Montana,' is void as being a covenant in restraint of trade. The court says: `The consideration of the covenant was the purchase by the Swift, etc., Company, a Connecticut corporation, of the manufactory in the city of New York belonging to the defendant, in which he had for several years prior to...