Brottman v. Schela

• Decision Date: 31 December 1924
• Citation: Brottman v. Schela, 52 N.D. 137, 202 N.W. 132 (N.D. 1924)
• Court: North Dakota Supreme Court

202 N.W. 132

52 N.D. 137

ROSE BROTTMAN, Respondent, v. JOHN SCHELA, Appellant

Supreme Court of North Dakota

December 31, 1924

In District Court, Ramsey County, Buttz, J.

Action to enjoin defendant from engaging in the grocery business.

Defendant has appealed from the judgment and demands a trial de novo.

Judgment reversed.

Judgment reversed and action dismissed.

Flynn Traynor & Traynor, for appellant.

"The power of equity to reform written instruments is an extraordinary one, and its exercise must be carefully guarded and granted only in a clear case." 34 Cyc. 904.

"The instrument sought to be corrected must fail to express the real agreement or transaction because of mistake common to both parties, or because of mistake on one side and fraud or inequitable conduct on the other. A mere misunderstanding of the facts is not sufficient ground for asking reformation". Id. p. 907.

"A unilateral mistake is not a ground for reformation. An instrument which agrees with the intention of one party although under mistake as to the other, cannot be reformed. Before equity will reform a written instrument, it must appear that there was a valid agreement sufficiently expressing the real intent of the parties, and that the written instrument failed to express such intent, and that this failure was due to mutual mistake". Id. p 915.

"Good will is the possibility that old customers will resort to the old place for the purpose of trade". Macfadden v. Jenkins, 40 N.D. 443.

"That the remedy by injunction is summary, peculiar, and extraordinary, and lies only to prevent general and irreparable mischief; and that the power to grant an injunction should be exercised with the greatest caution, and only in very clear cases, and when there are circumstances to bring the cause under some recognized head of equity jurisdiction". Strobeck v. McWilliams, 42 N.D. 31.

"If these bills of sale are to be construed to contain such covenants as is claimed by appellants, it would be necessary for further construction as to how long they were to continue, and when they would end whether in a week, a month, or a year--or whether there would be a perpetual injunction on the right of the seller to establish a like business, with a right of solicitation." MacMartin v. Stevens (Wash.) 79 P. 1099.

"Good will, like a trademark, is but an incident to, and can have no existence apart from the business in which it had its origin." Mayer Fertilizer Co. v. Virginia-Carolina Chemical Co. 35 App. D. C. 426; 28 C. J. 731.

"The good will of a business is property, tangible only as an incident of, or as connected with, a going concern." Johnson v. Bruzek (Minn.) 172 N.W. 700.

Cuthbert & Adamson, for respondent.

"At common law contracts entered into on Sunday were as valid as those made on any other day." 37 Cyc. 557, 558.

"It is well settled that a contract entered into on Sunday does not violate a statute forbidding 'labor' on that day and hence is not void." 37 Cyc. 558. Johnson v. Brown, 13 Kan. 529; Kaufman v. Hamm, 30 Mo. 387; Glouer v. Cheatham, 19 Mo.App. 656; More v. Clymer, 12 Mo.App. 11; Fitzgerald v. Andrews, 15 Neb. 52, 17 N.W. 370; Horacek v. Keebler, 5 Neb. 355; Merritt v. Earle, 29 N.Y. 115, 86 Am. Dec. 292; Bloom v. Richards, 2 Ohio St. 387; Raines v. Watson, 2 W.Va. 371.

"It is thought that the sale is void because made on Sunday. It is sufficient answer to say that the statute of 1861 was not designed to prohibit the making of contracts, but the keeping open of a house or place of business on Sunday; that the statute has not prescribed as a penalty for a violation of the act that the contract made on Sunday shall be void. " More v. Murdock, 26 Cal. 526; Territory v. Davenport, 17 N. M. 214, 41 L.R.A. (N.S.) 407 and note.

The validity of contracts made on Sunday depends upon the statutes of the states where they are made. Contracts were not included among those acts which were rendered void by the English statute pertaining to judicial proceedings on Sunday. At the common law contracts made on that day were not for that reason void. Davis v. Barger, 57 Ind. 54; Adams v. Gay, 19 Vt. 358; Tucker v. West, 29 Ark. 386."

The general rule is that a contract which is completed on a secular day is not void because negotiations therefor have been conducted on Sunday. Note to Burr v. Nivison, 20 Ann. Cas. 37.

The objection that a contract is invalid for having been made on Sunday is not available where there was no meeting of the minds on that day. Greathead v. Walton, 40 Conn. 235; Stackpole v. Symonds, 23 N.H. 229; Merrill v. Downs, 41 N.H. 72.

The mere fact that a contract grows out of a transaction which took place on Sunday will not render it void. Tyler v. Waddingham, 58 Conn. 375, 20 A. 335, 8 L.R.A. 657; King v. Fleming, 72 Ill. 21, 22 Am. Rep. 131.

A contract is not void because some of its terms were fixed on Sunday, or because most of the business out of which the consideration for the contract arose was transacted on that day. Tuckerman v. Hinkley, 9 Allen (Mass.) 452; Adams v. Gay, 19 Vt. 358.

"The consideration for contracts is presumed to have been lawful. Illegality is never presumed, it must be alleged and proved." St. Louis etc. Ry. Co. v. Fire Asso. 18 S.W. 43; Dahl v. Montana Copper Co. 10 S.C. 97; White River Lumber Co. v. S.W. Imp. Asso. 18 S.W. 1055.

"Parties who have contracted with such foreign corporation as a corporation, and received and retained the benefits of such contract, cannot, in an action by such corporation, based thereon, raise the question of noncompliance with the terms of said sections." Washburn Mill Co. v. Bartlett, 3 N.D. 139.

A contract in restraint of trade is valid. Mapes v. Metcalf, 10 N.D. 60; Tode v. Gross, 127 N.Y. 480; Diamond Watch Co. v. Roeber, 106 N.Y. 473.

"Good will is the possibility that old customers will resort to the old place for the purpose of trade." Macfadden v. Jenkins, 40 N.D. 443.

"It is said: 'The good will of the business is property which the law protects and for injuries to which damages may be recovered.'" Maxwell v. Sherman, 172 Ala. 626, 55 So. 520.

"The good will of an established business is incorporeal property which may be mortgaged, sold, or leased in connection with the business, but it cannot be sold by judicial decree or otherwise, unless it be in connection with the sale of the business on which it depends." 40 N.D. 443; 20 Cyc. 1277.

"The general rule that contracts in restraint of trade are void has its exceptions, one of which is that, for the protection of the good will of an established business, the owner of the same may make a sale thereof with such business, and, as an inducement to the purchaser to buy, part with his liberty to engage in the same business for such limited time and with such limited territory as may be reasonably necessary to protect the purchaser in the enjoyment of such business." Ann. Cas. 1917A, 1011.

BRONSON, Ch. J. JOHNSON, NUESSLE, and BIRDZELL, JJ., concur. CHRISTIANSON, J. (dissenting).

OPINION

Statement.

BRONSON Ch. J.

This is an action to reform a contract and to enjoin defendant from engaging in the grocery business at a certain location in Devils Lake, North Dakota. Defendant has appealed from the judgment and demands a trial de novo in this court.

The facts necessary to be stated are:--The defendant owned two lots and a store building situated on what is known as the West Side in the city of Devils Lake, N.D. There for about one year and two months he had conducted a grocery business. Plaintiff, previous to the grocery business so maintained by defendant, apparently had worked for several years for an antecedent party who had likewise conducted a grocery business in the building concerned. On February 25th, 1922 defendant leased to plaintiff the two lots and building and also the fixtures in the building, for a term of two years and for a rental of $ 60 per month. In the lease there was also an agreement by plaintiff to purchase the groceries and merchandise at regular wholesale prices and at the end of two years defendant agreed to repurchase the stock of goods then on hand not exceeding $ 400.00. On the back of this lease there was the further agreement that the plaintiff would not put in any grocery business along certain named streets on the West Side in the vicinity of where the store is located. Pursuant to this leasing and sale they operated the store in defendant's building until about the month of November, 1923. Then plaintiff initiated arrangement to build a store building on adjacent lots (two lots intervening) and there to conduct a grocery business when the lease with defendant expired. Some officers of a wholesale grocery company, viewing these proceedings, made representations to the parties that it would be inadvisable to have two grocery stores in the neighborhood. These officers proceeded to bring the parties together and as a result of their efforts arrangements were made for the sale of the building owned by defendant to plaintiff. Pursuant to plaintiff's evidence, on a certain Sunday, defendant agreed that if plaintiff bought the store he would not put in a store on the West Side. Pursuant to the testimony of one Crawford, salesman of the wholesale grocery company, defendant stated to the manager of the company that if plaintiff bought the building he would not put in a store. Likewise, one Johnson, manager of the grocery company, testified that defendant stated that if plaintiff bought the building he would not start a store, and if he did not, he would start a store; that the defendant did not state where he would start this store nor how long he would refrain from starting a store. Defendant's testimony in this regard is to the effect that his statements to...