Baumgarten v. Broadaway

• Decision Date: 30 June 1877
• Court: North Carolina Supreme Court
• Parties: HENRY BAUMGARTEN v. J. S. BROADAWAY.

77 N.C. 8

HENRY BAUMGARTEN

v.J. S. BROADAWAY.

Supreme Court of North Carolina.

June Term, 1877.

MOTION for an Injunction heard at Spring Term, 1877, of MECKLENBURG Superior Court, before Cloud, J.

On the 19th of July, 1872, the plaintiff bought of the defendant a photographic gallery and fixtures, and an unexpired lease on certain rooms in the City of Charlotte, and the custom and good will of the defendant in his business of photography, for the sum of $1500. The contract was in writing, and as a part of the consideration of the purchase, it was agreed that the defendant would not open another gallery or work in the capacity of photographer in Charlotte, for a period of ten years from said date.

It was alleged that the defendant in violation of said contract had rented rooms in said City, and caused the same to be fitted up with the necessary appliances for a photographic gallery, and that he notified the plaintiff of his intention to open a gallery, and that he had actually opened the same and commenced work as a photographer.

The defendant admitted the sale and payment of said sum to him, but denied that the good will entered into or formed any part of the consideration of said purchase. He alleged that he signed the contract after the sale and payment of the money, and that the statements contained in the contract did not constitute an inducement to the bargain, and that the property sold to plaintiff aside from other considerations was worth the purchase money according to its market value. The establishment of a gallery for the purpose of operating as a photographer was also admitted by the defendant, but he denied that in so doing, any valid contract between him and the plaintiff had been violated.

The affidavit of Isaiah Simpson, the subscribing witness to the agreement between the parties, substantially corroborates that of the plaintiff, viz: that the sale and the contract were parts of the same transaction, and that the inducement which prompted the plaintiff to buy the gallery, good will, &c. was to prevent the defendant from opening another gallery or working in said city as a photographer.

Upon the hearing of the case, His Honor allowed the motion and ordered that an injunction issue, restraining the defendant, his agents, servants or employees from opening or carrying on a photographic gallery in Charlotte, &c., as prayed for by the plaintiff, and the defendant appealed.

Mr. J. W. Hinsdale, for plaintiff .

Messrs....