Blanchard v. Haber

• Decision Date: 02 July 1928
• Docket Number: 28568
• Citation: 118 So. 117,166 La. 1014
• Court: Louisiana Supreme Court
• Parties: BLANCHARD v. HABER

118 So. 117

166 La. 1014

BLANCHARD v. HABER

No. 28568

Supreme Court of Louisiana

July 2, 1928

Rehearing Denied July 20, 1928

Appeal from Civil District Court, Parish of Orleans; William H Byrnes, Jr., Judge.

Suit by Dr. F. A. Blanchard against Dr. M. F. Haber. From an order granting a temporary injunction, defendant appeals.

Injunction dissolved, and suit dismissed.

Daly &amp Hamlin and Charles Rosen, all of New Orleans, for appellant.

St. Clair Adams, Michael M. Irwin, and St. Clair Adams, Jr., all of New Orleans, for appellee.

OPINION

O'NIELL, C. J.

This is an appeal from an order granting a temporary injunction. The facts of the case are stated in Blanchard v. Haber, 163 La. 627, 112 So. 509, which was a mandamus proceeding, in which the judge who granted the injunction in this case was directed to grant the defendant a suspensive appeal from the order of injunction. The writ forbids the defendant, who is a licensed and practicing dentist, to engage or attempt to engage, directly or indirectly, for himself or for others, in the practice of dentistry at No. 908 Canal street, New Orleans, or at any place within five blocks from No. 936 Canal street, the location of the United Dental Company's office or establishment; and it also forbids him to solicit, either directly or indirectly, by writing, advertisement, or word of mouth, the business of any of the plaintiff's patients.

The purpose of the injunction is to enforce the obligations expressed in the ultimate paragraph of the following agreement, dated September 26, 1925, viz.:

"Memorandum of Agreement.

"This agreement, made and entered into between F. A. Blanchard, party of the first part, and Dr. M. F. Haber, party of the second part, witnesseth:

"Whereas, the party of the first part desires the services of a dentist; and

"Whereas, the party of the second part, a dentist, desires to continue in the employ of the party of the first part:

"Now, therefore, it is mutually agreed between the said parties that the party of the second part shall continue in the employ of the party of the first part, his employment having been, and is, perfectly satisfactory to him, as a dentist, in the city of New Orleans, Louisiana, and for his future services as such shall receive the sum of sixty ($ 60) dollars per week, for [probably meaning from] the signing hereof, payable weekly.

"It is further agreed that this contract shall be and remain in force for aperiod of ten years, to be terminated by either party hereto by the giving to the other party a thirty-day written notice of such intention.

"In consideration of the employment, and the salary herein agreed to be paid to the party of the second part, and in further consideration of the association to be gained, and knowledge to be obtained, the great number of patients to come under the care while in the modern establishment of the party of the first part, it is agreed that, in the event the party of the second part leaves the employ of the party of the first part, or shall the party of the first part dispense with the services of the party of the second part, or for any reason this agreement should terminate, the party of the second part agrees that he will not, within a period of ten years following such termination, engage or attempt to engage, directly or indirectly, for himself or for others, in the practice of dentistry within five blocks of the then location of the United Dental Company's Offices or establishment; and the party of the second part further agrees and so pledges himself not to solicit during those ten years, either by writing, advertisement, or word of mouth, the business of any of the patients of the said party of the first part."

There were several serious defenses urged in answer to the rule to show cause why the writ of injunction should not issue, as shown in the report of the mandamus proceeding, 163 La. 627, 112 So. 509, but we prefer to rest our decision upon the fundamental proposition tendered by the defendant's exception of no cause or right of action; that is to say, that the obligations attempted to be imposed upon Dr. Haber under the last paragraph of the instrument were contracted under a potestative condition, and that there was therefore no mutuality of obligations.

Article 2034 of the Civil Code declares that an obligation contracted on a potestative condition on the part of him who binds himself is null; and article 2024 defines a potestative condition as one which makes the execution of the agreement depend on an event which it is in the power of one of the contracting parties to bring about or hinder. The peculiar feature of the contract between Dr. Blanchard and Dr. Haber which made it entirely unilateral, was that Dr. Blanchard could put an end to the contract at any time, from the moment of signing it, by giving thirty days' notice, and could thus put Dr. Haber out of business as a competitor for the period of ten years; whereas Dr. Haber could not recede from the contract without paying the penalty of going out of business as a competitor of Dr. Blanchard for the period of ten years. In fact, the penalty stipulated, to be imposed upon Dr. Haber for the benefit and advantage of Dr. Blanchard, which Dr. Blanchard could invoke against Dr. Haber at any time and without any cost to Dr. Blanchard, and which forbade Dr. Haber to...