Burton v. Douglass

• Decision Date: 07 December 1909
• Citation: 141 Wis. 110,123 N.W. 631
• Parties: BURTON ET AL. v. DOUGLASS ET AL.
• Court: Wisconsin Supreme Court

141 Wis. 110

123 N.W. 631

BURTON ET AL.

v.DOUGLASS ET AL.

Supreme Court of Wisconsin.

Dec. 7, 1909.

Appeal from Circuit Court, Walworth County; E. B. Belden, Judge.

Action by John E. Burton and others against Horace G. Douglass and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Appeal from a judgment of the circuit court of Walworth county. For many years prior to October 5, 1903, the firm of Douglass & Dunn was engaged in the business of selling flour and feed at the city of Lake Geneva. For some months prior to said date, the firm of Burton & Denison was engaged in a like business; the firm consisting of W. E. Burton and E. D. Denison. On said date the firm of Douglass & Dunn agreed to sell and convey to Lucretia D. Burton certain real estate owned by them in the city of Lake Geneva, as well as their stock in trade and the good will of their business. The stock in trade was to be paid for at its inventory value, based on cost price. For the remainder of the property the vendee agreed to pay $10,000, of which amount $2,000 was presently paid, and the balance was to be paid on November 5th. On the last-named date, Lucretia D. Burton, John E. Burton, and Ebenezer Davidson formed a copartnership with the members of the firm of Burton & Denison for the purpose of continuing the flour and feed and other business carried on by said firm, and also for the purpose of carrying on the business purchased by Lucretia D. Burton from the firm of Douglass & Dunn. A portion of the property purchased by Lucretia D. Burton from Douglass & Dunn was purchased by the new firm, and a portion of it was leased to it. The trial court, in deciding the case, held that Lucretia D. Burton made the purchase from Douglass & Dunn as a mere intermediary and in behalf of the firm of Burton & Denison. On the day the original contract between Douglass & Dunn was made (October 5th), a separate contract was entered into between the firms of Douglass & Dunn and Burton & Denison, as follows: “Whereas, Douglass & Dunn have this day contracted to sell to Lucretia D. Burton their flour and feed business, together with the real estate upon which the improvements used to operate such business are situate; and, whereas, Burton & Denison, now in similar business, expect to repurchase such business of said Lucretia D. Burton: Now therefore it is mutually agreed by and between Douglass & Dunn and each of them, and Burton & Denison and each of them, that in case the above-mentioned contract shall be carried out and such sale and purchase made, for value received, each in consideration of the promise of the other, that Douglass & Dunn or either of them, for a term of ten years at Lake Geneva or vicinity, shall not enter into or engage in the flour and feed business without first making an attempt and in good faith offering a reasonable price to purchase the flour and feed business of Burton & Denison; and Burton & Denison agree for a term of ten years that they or either of them will not dispose of the flour and feed business of said last-mentioned firm or of either party to any third party without first making an offer in good faith and for a reasonable price of said business to said Douglass & Dunn, but this agreement shall not preclude either partner of said last-mentioned firm from selling to the other partner or in taking in a third partner prior to December 1, 1903.”

The payments called for by the contract between Douglass & Dunn and Lucretia D. Burton were made, and the title to the property purchased passed to Lucretia D. Burton and her assigns, and thereupon the firm of Douglass & Dunn ceased to carry on its former business in Lake Geneva. On January 16, 1904, the defendants started a flour and feed business at the village of Williams Bay, located about 6 1/2 miles from Lake Geneva, and during the month of March following engaged in a like business at the village of Zenda, also located about 6 1/2 miles from Lake Geneva. In the meantime the defendants offered to repurchase the business sold to Burton, Denison, and Davidson at Lake Geneva. The offers made were rejected, and the court found that such offers were not reasonable. Defendants advertised the business carried on at Williams Bay and Zenda in the Lake Geneva newspapers, and sold a small quantity of flour and feed from such places to customers at Lake Geneva. On January 20, 1909, the defendant Harold J. Douglass, a son of Horace G. Douglass and a nephew of Edward F. Dunn, started a flour and feed business at Lake Geneva. This business was started with money contributed by the father, mother, and uncle of Harold J. Douglass. Plaintiffs contended that this business was really that of the former firm of Douglass & Dunn, and that it was carried on under the name of Harold J. Douglass for the purpose of evading the terms of the aforesaid contract. Until a short time before this action was begun, no claim was made by plaintiffs that the defendants had violated their contract by engaging in business at Williams Bay and Zenda. The action was brought to enjoin the defendants from engaging in the flour and feed business at Lake Geneva, Williams Bay, and Zenda, and other places in the vicinity of Lake Geneva, and to compel the defendants to account for the profits of the business carried on in violation of the contract. The circuit court found that Harold J. Douglass was conducting his individual business at Lake Geneva, and that the members of the firm of Douglass & Dunn had no interest therein. The court further found that said firm did not engage in business in the vicinity of Lake Geneva within the intent and meaning of their contract, and judgment was entered dismissing the complaint, from which judgment this appeal is taken.Quarles, Spence & Quarles and Charles S. French (J. V. Quarles, Jr., of counsel), for appellants.

Frederick Kull (Ryan, Merton & Newbury, of counsel), for respondents.

BARNES, J. (after stating the facts as above).

There is sufficient evidence to support the finding of the trial court that the business carried on at Lake Geneva by the defendant Harold J. Douglass was his own, and that his codefendants were not interested therein.

The trial court further found that the members of the firm of Douglass & Dunn did not breach their contract by engaging in business at Williams Bay and Zenda, as these places were not in the “vicinity” of Lake Geneva,...