Bader Automotive & Indus. Supply Co., Inc. v. Green
| Citation | 533 S.W.2d 695 |
| Decision Date | 10 February 1976 |
| Docket Number | No. 36294,36294 |
| Parties | BADER AUTOMOTIVE & INDUSTRIAL SUPPLY CO., INC., Plaintiff-Respondent, v. Glynn J. GREEN (now known as Glynn J. Wisniewski), Defendant-Appellant. . Louis District, Division Three |
| Court | Court of Appeal of Missouri (US) |
Richard P. Nangle, St. Louis, for defendant-appellant.
Sullivan & Watkins, A. Michael Sullivan, David J. Rauscher, Clayton, for plaintiff-respondent.
Defendant Glynn J. Green 1 appeals from a judgment of the trial court enforcing a restrictive agreement and enjoining defendant Green from directly or indirectly competing with plaintiff Bader Automotive & Supply Co., Inc. in plaintiff's business. On appeal, defendant Green contends that the restrictive agreement was impermissibly altered by plaintiff and is therefore unenforceable. We find sufficient basis for the trial court's judgment and affirm.
In September, 1970, defendant Green began working as the only salesman for Richard J. Bader, who operated a sole proprietorship in the sale and distribution of auto body supplies to auto body shops in the St. Louis metropolitan area, including portions of adjoining Illinois counties. On April 1, 1971, Mr. Green and Mr. Bader executed the following agreement which has caused the controversy giving rise to this litigation:
'In consideration of my employment by Bader Supply Company, a Missouri corporation, I hereby promise and agree that I will not, while in the service of Bader Supply Company, or at anytime thereafter, disclose to any person the business methods, names or addresses of the clients, or the trade secrets of Bader Supply Company; and, further, while in the service of Bader Supply Company and for a period of three (3) years after leaving their service of Bader Supply Company will not, under any circumstances or conditions whatsoever, engage in, or become interested, directly or indirectly, as an individual, partner, stockholder, director, officer, agent, employee, trustee, or in any other relation or capacity whatsoever, in or to, the business of (distribution of auto body supplies), within any state in which Bader Supply Company is now engaged in business at the time of the termination of my employment.
'Further, as a part of the consideration of this Agreement, I agree that I will not, at any time, while in the employ of Bader Supply Company, or within three (3) years after leaving its services from whatsoever caused, for myself or for any other person or company in anyway directly or indirectly divert, take away, or attempt to divert or take away or solicit any of the clients of Bader Supply Company.
'It is further expressly agreed that if I, while this Agreement remains in effect, shall violate any of its terms by entering into the employ or service, or otherwise act in aid of the business of any rival company or concern engaged in the same or similar general line of business, or solicit any of the clients of (Bader Supply Co), said (Bader Automotive & Ind. Sup. Co Inc.) shall be entitled to an injunction to be issued by any competent Court of equity, in enjoining and restraining me from the continuation of such employment, service, solicitation or any act in aid of the business of any rival company or concern.'
Glynn J. Green
Employee
Richard J. Bader
Employer' 2
The bracketed portions of the agreement--'Bader Automotive & Industrial Supply Co., Inc.,' 'distribution of auto body supplies,' 'Bader Automotive & Ind. Sup. Co Inc.,' and, in one instance, 'Bader Supply Co'--denote blank spaces in the typewritten agreement which were handwritten by Richard Bader. The underlined portions of the agreement were typed in at Mr. Bader's direction.
The controversy centers on whether the blanks were filled in before or after the agreement was signed by both parties on April 1, 1971, and without the authority of defendant Green. Mr. Bader asserts that the name of his corporation, Bader Automotive & Industrial Supply Co., Inc., and the fact that it was in the business of distribution of auto body supplies, was inserted in the agreement prior to its being signed by defendant Green and Mr. Bader. In other words, Mr. Bader maintains that the agreement was complete and without blank spaces at the time it was signed by both parties on April 1, 1971. Mr. Bader also testified that at the time the agreement was signed on April 1, 1971 he was in the process of having his business incorporated but that due to the possibility that the corporate name desired might not be available for use, he was not certain of the exact corporate name for his company. Hence, the reason for the use of the two corporate names in the agreement--Bader Automotive & Industrial Supply Co., Inc. and Bader Supply Company--was that he was uncertain what the corporate name would be and that as an individual he had done business as Bader Supply Company. Mr. Bader also testified that this matter had been discussed with defendant Green prior to and at the signing of the agreement; that the restriction against Mr. Green's participation in the business of 'distribution of auto body supplies' was also a part of the written agreement executed by both parties on April 1, 1971. Mr. Bader acknowledged that the certificate of incorporation for plaintiff Bader Automotive & Supply Co., Inc. was not issued by the Missouri Secretary of State until May 26, 1971.
Defendant Green acknowledged signing the agreement on April 1, 1971 and also acknowledged that 'Bader Supply Company' was typed in the agreement, as indicated, at the time he signed it. However, he categorically denied that 'Bader Automotive & Industrial Supply Co., Inc.' or the restriction on his business activity to 'distribution of auto body supplies' had been filled in at the time he signed the agreement; that when he executed the agreement, the spaces for those two items were blank and had been filled in without his permission subsequent to the signing of the agreement. Defendant Green had no copy of the agreement to support his testimony. Defendant Green acknowledged that his business with Mr. Bader before and after the execution of the agreement had been as an employee in the sale of auto body supplies; that subsequent to the incorporation of the business he had received his income on checks issued by the plaintiff corporation. Defendant Green further acknowledged that he left the plaintiff corporation's...
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