Betten Co. v. Brauman

• Decision Date: 30 April 1935
• Citation: 218 Wis. 203,260 N.W. 456
• Parties: BETTEN CO., INC., ET AL. v. BRAUMAN.
• Court: Wisconsin Supreme Court

218 Wis. 203

260 N.W. 456

BETTEN CO., INC., ET AL.

v.BRAUMAN.

Supreme Court of Wisconsin.

April 30, 1935.

Appeal from a judgment of the Circuit Court for Brown County; Henry Graass, Circuit Judge.

Affirmed.

Action by plaintiffs, the Betten Company, Incorporated, and Daniel Betten, to enjoin the defendant, Samuel Brauman, from engaging in the business of dealing in junk for a period of ten years within a radius of 100 miles from the city of Green Bay, in violation of contracts entered into between the plaintiffs and the defendant. The latter admitted the execution of the contracts, and that he intended to engage in that business in Green Bay and the vicinity; but contended that the agreement was void because the restraint was unreasonable. Upon a trial, the court filed findings of fact and conclusions of law, upon which judgment was entered, enjoining the defendant from directly and indirectly engaging in the business of dealing in used or scrap iron or metal, junk, paper, rags, furs, secondhand machinery, paper mill supplies, belting, paper mill felts, wiping rags, new steel and reinforcing rods, for a period of ten years from January 29, 1932, within a radius of 100 miles from Green Bay; from assisting or giving any information to any person which would result in competition to the plaintiff corporation; and from entering the employ of any one else engaged in said business within that radius and period. Defendant appealed.

Kaftan, Rahr & Kaftan, of Green Bay, for appellant.

McGillan & Alk, of Green Bay, for respondents.

FRITZ, Justice.

Defendant assigns as error that the court erred in finding and concluding: (1) That some of the businesses, which plaintiffs contend are enumerated in the restrictive clauses of certain contracts and a bill of sale, were businesses in which the parties had engaged prior to the sale of defendant's stock in the plaintiff corporation to the plaintiff Daniel Betten; (2) that the good will of that corporation extended 100 miles from the city of Green Bay at the date of the sale; (3) that the restrictions were reasonably necessary for the protection of the good will of the corporation and the value of the stock sold to Betten; and (4) that plaintiffs were entitled to judgment.

The following facts found by the court were amply supported by proof: From 1921 to 1931 Betten and the defendant were actively engaged in business as junk dealers, with their junk yard in the city of Green Bay, and their operations and business gradually extending in amount and territory until, in the four years prior to February, 1932, their transactions, as occasions arose, extended to Appleton, Oshkosh, Manitowoc, Sheboygan, Milwaukee, Wisconsin Rapids, Antigo, Peshtigo, and Marinette in Wisconsin, Marquette and Iron Mountain in Michigan, and other cities, some of which were over 100 miles from Green Bay. In 1931 they organized the plaintiff corporation, under the name of Betten-Brauman Company, and transferred to it all of the partnership assets, and that corporation, under the active participation and management of the defendant and Betten, continued that junk business without any visible change in the management or operation thereof, the kinds of merchandise formerly dealt in as junk by the partnership, or the territorial scope thereof. Thus, by reason of the defendant's and Betten's continued activity on behalf of that business in purchasing as junk such commodities as paper, rags, paper mill supplies, belting, wiping rags, paper mill felts and supplies, hides, furs, wool, secondhand machinery, scrap iron and metals, which occasionally included new steel or reinforcing iron, each of them became acquainted with parties with whom that business was transacted within the territory covered by its operations and to which its good will extended. In January, 1932, the defendant, his wife, and her father entered into a contract, as parties of the first part, with the plaintiff Betten and his wife, as parties of the second part, under which Betten was given an option for ten days to purchase the stock of the parties of the first part in the plaintiff corporation, and the defendant was given a like option, during a period commencing after the expiration of those ten days, to purchase the stock of the parties of the second part; and, in connection therewith, the defendant, as well as Betten, covenanted and agreed with each other and the corporation, that “they and each of them will not, directly or indirectly, enter into or engage in any of the following businesses, viz: iron and metal, junk, paper, rags, hides, furs, second-hand machinery, paper mill supplies, used belting, wool, paper mill felts, wiping rags, waste, or in new steel and reinforcing iron, for a period of ten (10) years from the date hereof,...