Bradford v. Billington

• Citation: 299 S.W.2d 601
• Parties: Benjamin F. BRADFORD, Appellant, v. Charles B. BILLINGTON, Appellee.
• Decision Date: 22 February 1957
• Court: United States State Supreme Court (Kentucky)

Page 601

299 S.W.2d 601

Benjamin F. BRADFORD, Appellant, v. Charles B. BILLINGTON, Appellee.

Court of Appeals of Kentucky.

Feb. 22, 1957.

Waller, Threlkeld, Whitlow & Byrd, T. W. Threlkeld, Paducah, for appellant.

Wheeler & Marshall, Thomas J. Marshall, Jr., Earle T. Shoup, Paducah, for appellee.

CAMMACK, Judge.

The appellee, Dr. Charles B. Billington, is a physician residing in Paducah. On July 1, 1954, he entered into a partnership agreement with Dr. Benjamin F. Bradford, the appellant. At that time Dr. Bradford was a resident of New Orleans. Pursuant to the agreement, Dr. Bradford moved to Paducah. Dr. Billington transferred an interest in his office and medical equipment to Dr. Bradford, as well as a share in the accounts receivable at the time the partnership was formed. Fees collected by the partnership were to be divided between the partners according to a scale set forth in the contract. On February 25, 1956, Dr. Billington notified Dr. Bradford that he desired to dissolve the partnership in accordance with Paragraph X(b) of the contract, which provided for such action by either party after 120 days' notice. Within that period Dr. Bradford moved out of the partnership office, and since that time has practiced medicine in Paducah at a different location.

This action was instituted by Dr. Billington to obtain a declaratory judgmnet construing the contract, and, in particular, Paragraph X(b) which follows:

'In the event of the termination of the partnership, for any cause, Bradford shall not practice medicine directly or indirectly, in any manner, for himself or any person, firm, or corporation in Paducah or McCracken County, Kentucky, for a period of six (6) years from the date of this agreement.'

There appearing to be no material issue of fact involved, Dr. Billington filed a motion for summary judgment under CR 56. Dr. Bradford offered to file an amended answer, but permission was refused by the trial judge. No affidavits or depositions were filed by either party. Judgment was entered in favor of Dr. Billington, and this appeal followed.

Dr. Bradford's proposed amendment to his answer was designed to show that Dr. Billington's attorney had drawn the agreement. It asserted that any ambiguity should therefore be construed against Dr. Billington. It is now argued that the trial judge's refusal to accept the amendment constitutes prejudicial error. A party may amend his pleading after motion for summary judgment has been made only by leave of the court or by the written consent of the adverse party. CR 15.01. While liberality in granting leave to amend is desirable, the application is addressed to the sound discretion of the trial judge. Where, as in this instance, abuse of discretion is not shown clearly, the action of the trial judge will not be disturbed. Clay, CR 15.01(3); Leggett v. Montgomery Ward & Co., 10 Cir., 1949, 178 F.2d 436.

The issue to be decided is the validity of the restraining clause, Paragraph X(b), of the partnership agreement. The trial judge's interpretation of the clause is assailed on three grounds; namely, (1) the restraint was not to be effective unless Dr. Billington terminated the partnership for a justifiable or legal cause; (2) the contract was void for want of mutuality; and (3) contracts in restraint of future employment are against public policy.

Dr. Billington did not allege any cause for his termination of the partnership. The contract provided simply that either partner might dissolve the partnership by giving four months' notice to the other. While agreeing that either partner could end the partnership without giving justifiable grounds for so doing, Dr. Bradford insists that his promise not to practice in McCracken County for six years was not to be operative unless a 'cause' were shown for Dr. Billington's action. The phrase, 'for any cause,' cannot be construed in isolation; the contract as a whole must be considered. Non-technical words generally are to be understood in their ordinary and popular sense, unless the intent of the parties to use them otherwise is shown clearly from the context. Spring Garden Insurance Company v. Imperial Tobacco Company, 132 Ky. 7, 116 S.W. 234, 20 L.R.A.,N.S., 277...