Carpenter v. Southern Properties

• Decision Date: 14 May 1927
• Docket Number: (No. 10059.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 299 S.W. 440
• Parties: CARPENTER v. SOUTHERN PROPERTIES, Inc.,
• Court: Texas Court of Appeals

299 S.W. 440

CARPENTER v. SOUTHERN PROPERTIES, Inc.,

(No. 10059.)^*

Court of Civil Appeals of Texas. Dallas.

May 14, 1927.

Rehearing Denied June 11, 1927.

Writ of Error Refused November 2, 1927.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Suit for injunction by the Southern Properties, Inc., against H. Carpenter, who brought a cross-action. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

White & Yarborough, of Dallas, for appellant.

Locke, Locke, Stroud & Randolph, of Dallas, for appellee.

JONES, C. J.

This is an injunction suit instituted by appellee, Southern Properties, Inc., against appellant, H. Carpenter, to restrain him from engaging in the ice business in a described territory in the city of Dallas for a period extending to the 15th of May, 1928, with a prayer for the immediate issuance of a temporary writ. A restraining order was granted ex parte on the filing of the petition to remain in force until a designated day and appellee notified to appear on said day and show cause why such restraining order should not be continued as a temporary injunction. Appellant answered the suit on its merits, and also filed a cross-action against appellee for damages alleged to have been suffered by reason of the issuance of the restraining order. After two postponements of this hearing, during which time the restraining order was continued in force, the case was heard by agreement on its merits and a final judgment rendered enjoining appellant from engaging in the ice business in any manner in the described territory for the said period of time, and against appellant on his cross-bill. From this judgment appellant has duly perfected an appeal. The following are the facts:

Prior to the 2d day of March, 1926, appellant was engaged in the ice business, purchasing his supply at wholesale and selling and delivering it personally to the retail trade. All his activities in this business for a period of approximately 20 years were within a territory bounded on the west by Trinity river, on the south by Canton street, on the east by Harwood street, and on the north by McKinney avenue. This territory embraced the major portion of the central business section of the city of Dallas. Appellant's customers were drawn from every part of this territory, but their number was small as compared with the total number of consumers of ice in this district. Appellee is a corporation engaged in the manufacture and sale of ice to the wholesale and retail trade in the city of Dallas, its retail customers being supplied by employees operating ice wagons for delivery of ice, and being secured mainly through the individual efforts of such employees, appellee's officers having no direct contact with retail consumers of ice.

On March 2, 1926, the parties entered into an agreement, evidenced by two written instruments, by means of which appellee purchased appellant's equipment, consisting mainly of a team of two horses, a double set of harness, and a "1-¾ full platform ice wagon complete," for the price of $575, $275 of which was to be paid in 90 days, and for the further consideration that appellant be employed by appellee "in accordance with the terms of an employment contract offered to the seller for signature and signed simultaneously with the execution hereof." In addition to the delivery to appellee of the above-described properties as a consideration for the payment to appellant of $575 and the execution of the employment contract, appellant agreed that:

"If at any time hereafter he ceases, for any cause or in any manner whatever, to be employed by the said Southern Properties, Inc., he will not engage, to any extent whatever, directly or indirectly, for himself or for another or others, as proprietor, employee or otherwise, in the business of selling or delivering ice within that portion of the city of Dallas, Tex., bounded by the Trinity river on the west, by Harwood street on the east, by Canton street on the south, and by McKinney avenue on the north, for a period of 2 years after his said employment with Southern Properties, Inc., shall cease."

The contract of employment was attached to the other contract and recites that appellee has employed appellant to perform any service appellee may direct him to do in the city of Dallas in connection with the selling and delivering of ice, and "particularly as a foreman or supervisor of drivers of wagons engaged in the delivery of ice." Clauses 2 and 3 of the said contract are as follows:

"(2) The employee will not leave the employment of the employer for a period of one year from the date hereof, and the employer will not terminate the employment without just cause before the expiration of a like period. After the expiration of one year from the date hereof, the employment shall be terminable at the will of either party at any time.

"(3) The employee shall receive such wages as the employer may determine from time to time, such wages to be at a rate not less than $4 per day, payment to be made on the 20th day of each calendar month for the period from the 1st to the 15th, inclusive, of such calendar month, and on the 5th day of each calendar month for the period from the 6th day to the last day of the preceding calendar month."

The property above described was immediately delivered to appellee and the $300 cash payment made to appellant. The $275 deferred payment, by direction of appellant at the time of the execution of the contract, was paid to another party at the expiration of the 90 days, and appellant at once entered the service of appellee. On May 15, 1926, appellant was discharged from such service and has not been permitted by appellee to perform any service for it under said contract since said date. On the theory that this discharge was without just cause and was a breach of the employment contract, appellant sued appellee in a justice court in Dallas county to recover the minimum wages of $4 per day for the 45 days following his discharge on May 15th, and on August 26th was awarded judgment against appellee for $180, the full amount. Later he instituted suit for the same purpose in a county court at law of Dallas county to recover the same wages for the 63 days following the expiration of the 45 days, and was awarded judgment for $252, the full amount. These two judgments compensated appellant under his employment contract for a time extending from May 15, 1926, to September 1, of the same year, leaving him without compensation for the remainder of the contract year, from September 1 to March 2, 1927.

A short time before the institution of this suit on February 17, 1927, appellant purchased a small equipment and began the work of selling ice in the described territory. His work mainly at this time was "lining up" customers for the spring and summer trade, though he delivered ice to a few of his old customers and intended to make a thorough canvass of the district for his former customers and others before the heavy deliveries of ice in the spring and summer, but was stopped by this injunction. His intention is to continue such work in the described territory unless he is prevented from doing so by...