Barron v. Collenbaugh

• Decision Date: 16 May 1901
• Citation: 86 N.W. 53,114 Iowa 71
• Parties: BARRON v. COLLENBAUGH.
• Court: Iowa Supreme Court

114 Iowa 71

86 N.W. 53

BARRON

v.COLLENBAUGH.

Supreme Court of Iowa.

May 16, 1901.

Appeal from district court, Lyon county; William Hutchinson, Judge.

Action at law to recover damages for defendant's breach of a contract not to reengage in the livery business at the town of Rock Rapids. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. Reversed.E. C. Roach, for appellant.

Parsons & Riniker and Greenleaf & Greenleaf, for appellee.

DEEMER, J.

The contract on which the action is predicated reads as follows: “This duplicate memorandum of agreement made and entered into this 30th day of July, 1897, by and between J. M. Collenbaugh, of Rock Rapids, Iowa, party of the first part, and James Fogarty and F. M. Barron, of Alvord, Iowa, parties of the second part, witnesseth, that the party of the first part, for and in consideration of the sum of $3,300 in hand paid by the parties of the second part, receipt whereof is hereby acknowledged, agrees to: (1) To sell and convey unto the parties of the second part, by warranty deed, covenanting against all incumbrance whatsoever, the following described real estate, to wit: Lots No. 17, 18, and 19 of block No. 14 of the platted town of Rock Rapids, Iowa. (2) To sell and convey, all and singular, the certain livery stock to the parties of the second part, now had and kept on said premises. (3) The good will and courtesy of the livery business heretofore conducted on said premises,--and agrees to and with the parties of the second part, in and for the consideration above named, that he will not re-engage in the livery business in the town of Rock Rapids, Iowa, either as an individual or as an employé, during the time said parties of the second part may be engaged in said livery business on the above-named premises. In witness thereto the parties have subscribed their names and affixed their seals at Rock Rapids, Iowa, this 30th day of July, A. D. 1897. J. M. Collenbaugh, Party of the First Part. J. Fogarty, F. M. Barron, Parties of the Second Part.” On October 29, 1897, Fogarty transferred and assigned all his rights in and to the contract to plaintiff, Barron. Plaintiff claims that on and about September 1, 1897, defendant re-engaged in the livery business, contrary to and in violation of the terms of his contract. There was evidence from which the jury was justified in finding that defendant did re-engage in business, in the name of others, after executing the contract, and with that conclusion we should not interfere. In view of this evidence, the court instructed that the assignment by Fogarty carried with it a right in plaintiff to maintain an action for breach of the contract not to re-engage in business; that the contract was several, as well as joint; and that the assignment did...