Buanno v. Weinraub, No. 28371.

• Docket Nº: No. 28371.
• Citation: 226 Ind. 557, 81 N.E.2d 600
• Case Date: October 18, 1948
• Court: Supreme Court of Indiana

226 Ind. 557
81 N.E.2d 600

BUANNO
v.
WEINRAUB et al.

No. 28371.

Supreme Court of Indiana.

Oct. 18, 1948.

Action by Leonard Weinraub and others, doing business as Fort Wayne House & Window Cleaning Company, against Angelo Buanno to enjoin defendant from engaging in the business of window cleaning or janitor service in Allen county, or from being employed by another party engaged in the same business, and from soliciting such service, for a period of three years from termination of a written contract. From an adverse judgment, defendant appeals. Appeal transferred to the Supreme Court under Burns' Ann.St. § 4-209.

Judgment affirmed.

[81 N.E.2d 600]

Appeal from Allen Superior Court No. 2; James P. Murphy, Special judge.
Fay W. Leas and Noble F. Schlatter, both of Fort Wayne, for appellant.

Sol Rothberg, of Fort Wayne, for appellees.

[81 N.E.2d 601]

EMMERT, Judge.

This is an appeal from a judgment of the trial court enjoining the appellant from engaging in the window cleaning or janitor service in Allen County, either directly or indirectly, on his own behalf, or from being employed by another party engaged in the same business, and from soliciting such service on his own behalf or on behalf of another party in the window cleaning or janitor service business in said county, for a period of three years from the termination of a written contract providing for additional services of employment. The appeal is transferred from the Appellate Court to this court under § 4-209, Burns' 1946 Replacement.

For several years prior to August 1, 1943, the appellant had been employed under an oral agreement by the appellees, who were partners engaged in the window cleaning and janitor service business in the City of Fort Wayne, Indiana, and before that time he had been employed for many years by the father of appellees who operated the same business. The appellees, Irvin Weinraub and Leonard Weinraub, were entering the armed forces for service in World War II, and in order to keep the business operating while they were away, submitted to appellant a written contract which was supplemental to the oral agreement of employment. The specific provisions of the written contract which are material to the controversy follow:

‘Whereas, the party of the second part has been an employee of the party of the first part for many years and as such employee has been engaged in the window cleaning and janitor service, and,

‘Whereas said party of the second part has been receiving as compensation for his services to the first party the sum of $45.76 per week, and in addition to said amount has been receiving additional compensation for overtime, and,

‘Whereas it is the desire of the parties hereto to give to said second party additional responsibility, which responsibility consists of supervision of all of the employees engaged in said business, other than those engaged in the office, and will consist of the hiring and discharging of the men, obtaining additional work, fixing prices on new jobs, assigning the work to the men, routing the daily work and generally supervising the men in their duties so that the work is carried on economically and efficiently.

‘It is therefore covenanted and agreed by and between the parties that in consideration for the services to be rendered by the said second party as hereinbefore set out, said first party will pay to said second party, in addition to his regular salary, a sum equal to two per cent of the gross business engaged in by the first party during each year during the term of this agreement, provided, however, that if the gross business of said first party exceeds $42,000 during any current year while this contract is in force, said second party will receive an additional ten per cent on all gross business in excess of $42,000, it must appear by the books of the first party that the payment of said bonus will not create a loss and can only be paid out of net profits.

* * *

‘It is further understood and agreed by and between the parties that in the event either of the parties to this contract are not satisfied with the terms thereof or either of the parties, because of any reason, desires to cancel their contractual relationship, the party desiring to cancel the same may do so by giving to the other party sixty days' notice in writing advising that the contract is to be cancelled. At the termination of said sixty days, the contract will automatically terminate and neither party will be liable to the other party in any manner for the cancellation of said contract. It is to be understood, however, that at the time of the cancellation of said contract, the second party will be entitled to receive his percentage of business done, as hereinbefore provided, which percentage shall be paid for the period of time up to and including the date of the cancellation of the contract.

‘It is further understood and agreed by and between the parties that in the event said party of the second part should leave the employ of the...