City Ice & Fuel Co. v. McKee

• Decision Date: 24 February 1933
• Docket Number: No. 22612.,22612.
• Citation: 57 S.W.2d 443
• Court: Missouri Court of Appeals
• Parties: CITY ICE & FUEL CO. v. McKEE.

57 S.W.2d 443

CITY ICE & FUEL CO. v. McKEE.

No. 22612.

St. Louis Court of Appeals. Missouri.

February 24, 1933.

Rehearing Denied March 7, 1933.

Appeal from St. Louis Circuit Court; Robt. W. Hall, Judge.

"Not to be published in State Reports."

Suit by the City Ice & Fuel Company against John H. McKee. From a decree for defendant, plaintiff appeals.

Reversed, and cause remanded, with directions.

Daniel Bartlett, of St. Louis, for appellant.

Lee J. Placio and C. P. Schafer, both of St. Louis, for respondent.

KANE, Judge.

Suit for injunction. The parties will be referred to as plaintiff and defendant. Petition alleges that the plaintiff is an Ohio corporation lawfully licensed to do business and doing business in the city and county of St. Louis, Mo. That their business is principally the manufacture of ice and the sale and delivery of ice, coal, and fuel oil. That the defendant was employed by the plaintiff. That the employment consisted of selling, delivering, and solicitation of orders for ice, coal, and fuel oil in the district or territory in the city of St. Louis known as "Branch M"; the boundaries of such territory or district being as follows: Easton avenue on the north, east by Vandeventer, south by Delmar to Kingshighway and Lindell to Union, west by Union.

That on the 14th day of February, 1931, defendant agreed with plaintiff in writing, in consideration of the plaintiff continuing to employ said defendant, that upon defendant's leaving the employment of the plaintiff, either voluntary or otherwise, the defendant would not, either directly or indirectly, or in any way for a period of one year after leaving such employment, sell, solicit, or deliver ice, coal, or fuel oil, or collect for ice, coal, or fuel oil in, on, or over the district or territory hereinabove described; that on the 16th day of April, 1932, the defendant left the employment of the plaintiff, and that in direct violation of said agreement, defendant has engaged in, is threatening to continue, and is now, selling and soliciting orders for and delivering and collecting for ice within the district and territory described. It is further alleged that plaintiff had an established business of great value, and further that the defendant's acts and conduct in violation of his said agreement were greatly damaging and injuring plaintiff's business in the said district and territory and would continue to damage and injure plaintiff's said business. That defendant had no property out of which a judgment for damages could be satisfied; that he was insolvent, and unless restrained by the court, the defendant's violation of his agreement would result in irreparable damage and injury to the plaintiff and its said business, for which plaintiff had no adequate remedy at law.

The prayer was for an injunction restraining the defendant from directly or indirectly or in any way selling, soliciting, or delivering ice, coal, or fuel oil or collecting for ice, coal, or fuel oil in the district or territory described in said petition for a period ending on the 16th day of April, 1933.

The court, upon the petition of plaintiff, and upon plaintiff giving bond in the sum of $500, approved by the court, issued an order to show cause and a temporary restraining order returnable on the 21st day of July, 1932.

The defendant filed a motion to strike out parts of plaintiff's petition and for additional bond. On the 21st day of July, 1932, the court overruled defendant's motion to strike, making no ruling on defendant's petition for additional bond, and the cause was passed by consent of the parties to July 22, 1932.

Defendant's return (omitting formal parts) was as follows:

1. That defendant denies each and every allegation contained in said petition.

2. That the contract mentioned in plaintiff's petition was executed without consideration, and that defendant's signature thereon was secured by the plaintiff by fraud and duress, and that there was no meeting of the minds of the parties thereto.

3. That said contract is for the purpose of restraining lawful and reasonable trade.

4. That said contract does not constitute the real contract and agreement between the parties, but defendant says that the agreement set out in plaintiff's petition was part of a plan and scheme devised by the plaintiff for the purpose of reducing the number of its employees and eliminating lawful and reasonable competition and trade by its discharged employees, and particularly this defendant.

5. That plaintiff breached the real agreement and contract existing between plaintiff and defendant by refusing to continue to employ the defendant, and that therefore plaintiff does not come into court with clean hands.

6. That said contract is contrary to and against public policy.

7. That said contract set forth in plaintiff's petition is ambiguous.

8. That defendant specifically denies that he has no property out of which a judgment for damages or breach of contract could be satisfied and that he is insolvent.

It appears that on the 22d day of July, 1932, the court heard the evidence of both plaintiff and defendant, at the conclusion of which it took the case under advisement, and on the 19th day of September, 1932, rendered a decree in favor of defendant and against the plaintiff denying a permanent injunction, dissolving the temporary restraining order, and dismissing plaintiff's bill.

Plaintiff on the 22d day of September, 1932, filed a motion for a new trial and a motion to set aside the court's order dismissing plaintiff's bill and asking for a default against the defendant. We do not deem it necessary to set out the motion to set aside the decree of the court and for default. Suffice it to say that said motion claimed that the defendant had filed no answer other than the said motion to strike and the return to the order to show cause and claiming that there had been no trial of said cause on the merits.

It appears that on the 24th day of September, 1932, the defendant filed the following answer (omitting formal parts): "Comes now the defendant and for answer to plaintiff's petition, denies each and every allegation therein contained."

The court, on October 7, 1932, sustained the motion to set aside its order dismissing plaintiff's plea and said judgment denying a permanent injunction and reinstated said cause on the docket of the court. Plaintiff thereupon withdrew its motion for a new trial.

It appears that on October 18, 1932, said cause being at issue, plaintiff and defendant entered into the following stipulation:

"It is hereby stipulated and agreed by and between the parties to this case, plaintiff and defendant, that this cause be submitted to the Court on the petition of plaintiff and the answer of defendant filed herein, and on the evidence adduced at the hearing on the order to show cause herein, said hearing having been held on the 22nd of July, 1932, subject to all objections and exceptions of the parties made at the time.

                "[Signed] Daniel Bartlett
                               "Attorney for Plaintiff
                "[Signed] Lee J. Placio and
                          "C. P. Schafer
                                "Attorneys for Defendant."
                

The court, in accordance with said stipulation, took the cause under advisement. Thereafter, on the 24th day of October, 1932, the court made and entered its decree dismissing plaintiff's bill and denying a permanent injunction.

After an unavailing motion for a new trial, this cause is here on appeal.

W. C. Stock testified on behalf of the plaintiff that he had been manager of Branch M for fifteen years; described the boundaries of said branch as alleged in plaintiff's petition; that it comprised two dozen or more square blocks and was one-twelfth of the area of the whole city, the whole number of branches in the city being thirty; that he had known the defendant for fifteen years as an ice driver and that he left the employ of plaintiff company on April 16, 1932; that he resigned—he was not discharged. Witness identified the signature of McKee (defendant) on the contract, stating that it was signed in his presence; that defendant had requested and obtained permission to take said contract home and study it over. Witness further testified as follows:

"He took it away and brought it back the next day and signed it in my presence.

"Q. Did he say anything to you about it at the time? A. No, nothing that I recall.

"Q. Did you say anything to him about the necessity for him signing that? A. I told him that was a contract which the company was asking every employee to sign, myself included."

When said contract was offered in evidence, Mr. Placio, attorney for the defendant, made the following statement: "We will admit the contract as being true."

The contract, which is Plaintiff's Exhibit A and offered in evidence, is as follows:

                                 "Name _____________________
                                 "Station __________________
                                         "For Main Office Use
                

"In consideration of the City Ice and Fuel Company continuing to employ J. McKee He agree that upon his leaving the employment of The City Ice & Fuel Company, either voluntarily or otherwise, that for a period of one (1) year after leaving the employment of The City Ice & Fuel Company he will not, either directly or indirectly, in any way, sell, solicit or deliver ice, coal or fuel oil, or collect for ice, coal or fuel oil, on or over the district known as No. Br. M. which covers the territory bounded by Easton Ave. on the north East by Vandeventer South by Delmar to Kings-highway and Lindell to Union West by Union.

"In Witness Whereof, the parties hereto set their hands at St. Louis, Mo., this 14th day of February, 1931.

                       "The City Ice and Fuel Company
                          "By [Signed] W. C. Stock
                              "[Signed] J. McKee
                                            "Employee
                "Witness: [Signed] W. Kemper."
                

Witness further testified as follows: "Q. Now, since leaving the company on April 16, 1932, as you describe it,...