Athletic Tea Co. v. Cole

• Decision Date: 07 May 1929
• Docket Number: No. 20737.,20737.
• Citation: 16 S.W.2d 735
• Parties: ATHLETIC TEA CO. v. COLE.
• Court: Missouri Court of Appeals

16 S.W.2d 735

ATHLETIC TEA CO. v. COLE.

No. 20737.

St. Louis Court of Appeals. Missouri.

May 7, 1929.

Appeal from Circuit Court, Jefferson County; E. R. Dearing, Judge.

"Not to be officially published."

Suit by the Athletic Tea Company against Ben F. Cole. Judgment for defendant, and plaintiff appeals. Affirmed.

R. E. Kleinschmidt, of Hillsboro, and John V. Lee, of St. Louis, for appellant.

P. S. Terry, of Festus, for respondent.

BECKER, J.

This is an action in equity to enjoin and restrain the defendant from engaging in the business of selling coffee, tea, spices, etc., within the territory of "Imperial, Missouri, and surrounding territory," for a period of one year. From a judgment dissolving a temporary writ of injunction theretofore granted, and a denial of a writ of permanent injunction, plaintiff in due course appeals.

The defendant under a written contract of employment with the plaintiff company undertook thereby to sell coffee, tea, spices, etc., in "the following territory; Imperial, Missouri and surrounding territory." The contract was dated February 17, 1927, and the defendant resigned February 25, 1928. The said contract of employment contains a restrictive covenant which reads as follows: "Fourth. And said party of the second part further expressly covenants and agrees as part of the essence of the consideration hereof, that he will not within one year from and after the termination of this contract of employment and agency (in whatever manner said termination may occur) directly or indirectly sell or in any way participate in, or encourage the sale of, or agreement to sell, within the territory covered by this agreement, any teas, coffees, baking powder, extracts, spices or other goods, either on his own account or through or for or in behalf of any other person, firm or corporation; and that he will not within said period of employment and one year thereafter, in any way, directly or indirectly, divert or attempt to divert, from said party of the first part any business whatsoever, and particularly not by influencing or attempting to influence any of the customers with whom he may have had dealings."

Plaintiff adduced the testimony of but one witness, W. H. Schlagenhauf, who testified that he was in the employ of the plaintiff company, and that plaintiff's business was that of selling tea, coffee, and general merchandise over wagon and automobile routes throughout the country, and that it sells its products direct from the vehicle to the consumer, and that at the time of the trial plaintiff had established 92 routes. It was on one of these routes designed as "Imperial, Missouri, and surrounding territory," that the defendant was employed as salesman. According to Schlagenhauf, prior to the signing of the contract of employment, the particular territory which was intended to be covered by defendant's contract was discussed with him and finally marked off on a map that hung in the office of the company at St. Louis, but no such map, however, was offered in evidence, and, over the objection of defendant, the witness was permitted to testify that the territory covered by the contract in question "is bounded on the east by the Mississippi River, and runs south to about Glen Park, and then west six or eight miles, and then north as far as Gravois Road, and back to the county road, and that territory was known as the Imperial route." This witness further testified that after defendant had resigned the auditor of the plaintiff company and he went down to the territory covered by the route and followed defendant on his rounds "a whole day," and found that he "had sold some merchandise at one place," and solicited at several others.

On cross-examination, this witness, though he stated he had a list of such parties on whom defendant had called, was unable to give the name of any person whose house Cole had entered, and was unable to tell the names of the roads over which he traveled with the auditor on the day they followed defendant. He could merely state that it was on the route, though he did not know what county it was in, nor could he remember the date.

The defendant himself denied that the route had been marked off upon any map, and testified that the town of Imperial is located in Jefferson county some 8 or 10 miles south of the Meramec river, and that after he...