Counts v. Medley

• Decision Date: 01 April 1912
• Parties: COUNTS v. MEDLEY.
• Court: Missouri Court of Appeals

146 S.W. 465

COUNTS v. MEDLEY.

Springfield Court of Appeals. Missouri.

April 1, 1912.

Dissenting Opinion April 2, 1912.

Rehearing Denied May 8, 1912.

1. GOOD WILL (§ 6)—TRANSFER—COMPETING BUSINESS BY VENDOR.

Where the seller of a business expressly agrees not to engage in the same business at the same place for a specified time, or so long as the buyer continues in business, there is a sale of the good will of the business; but, in the absence of an express agreement, the sale of the business, together with its good will, does not imply an agreement by the seller not to engage in a competing business.

2. CONTRACTS (§ 154)—CONSTRUCTION—REFERENCE TO EFFECT.

Where the language of a contract is clear, the contract is obligatory on the parties, though its consequences may be harsh, and its stipulations contrary to the way in which men ordinarily bind themselves by such contracts.

3. CONTRACTS (§ 169)—CONSTRUCTION—EVIDENCE TO AID CONSTRUCTION.

Where the terms of a contract are doubtful or have a double meaning, the situation of the parties in respect to the subject-matter, the surrounding circumstances, the usages of the business, and the purposes intended are all to be considered in reaching the construction of the instrument.

4. CONTRACTS (§ 154)—CONSTRUCTION—REASONABLENESS—GOOD FAITH.

Where there is room for construction, a contract should not be interpreted so as to give an unfair advantage to one of the parties over the other.

5. CONTRACTS (§ 147) — CONSTRUCTION AGAINST PROMISOR.

The promisor is bound according to the sense in which he apprehended that the promisee received his proposition.

6. GOOD WILL (§ 6)—SALE—AGREEMENT NOT TO ENGAGE IN BUSINESS "AT."

The proprietor of a produce business at R., a small unincorporated town, sold the business, the main part of which was with people around and outside of the town, by a contract providing that he would not engage in the produce business "at R." for five years. Within that time he purchased a store at H., an unincorporated town about 1½ miles from R., and engaged in the produce business and shipped through the railroad station at R., and lived and received his mail there, and bought produce from his old trade, delivered at H., and gained the business of persons who used to do business with him at R., and who had done business with the purchaser. Held, that the seller was in open competition with the buyer of the business, construing the words "at R." to mean near and about that town, and would be enjoined.

Nixon, P. J., dissenting.

Appeal from Circuit Court, Webster County; C. H. Skinker, Judge.

Action for an injunction by I. W. Counts against O. H. Medley. From a judgment dismissing the bill, plaintiff appeals. Reversed and remanded, with instructions.

I. V. McPherson, of Aurora, R. S. Phillips, of Marshfield, and J. A. Potter, of Aurora, for appellant. Patterson & Patterson, of Springfield, for respondent.

GRAY, J.

On and prior to the 14th day of April, 1911, the defendant was engaged in the produce business at Rogersville, in Webster county, this state, a small town unincorporated and located on the St. Louis & San Francisco Railroad. On that day, by written contract, he sold his business to plaintiff herein for the sum of $600. The contract contained the following provisions: "The said O. H. Medley for and in consideration above mentioned hereby agrees not to engage in the produce business at Rogersville, Mo., for a term of five years from the 22d day of May, 1911." After the execution of the contract, plaintiff took charge of the business, and was conducting the same at the time this suit was commenced. About a month later defendant purchased a country store at Henderson, also an unincorporated place, about 1½ miles north of Rogersville, and engaged in the business of buying, shipping, and dealing in produce at that place, and this suit was instituted by plaintiff to enjoin defendant from conducting said business. The case was tried on an agreed statement of facts, which with the contract constituted all the evidence in the case.

By the agreed facts, it appears that the town of Henderson is not on a railroad and has no post office, but its mail is delivered by rural route from Rogersville; that defendant lived at Rogersville, had a telephone, and, when any of his old customers solicited prices from him, he furnished the same, and agreed to buy their produce if delivered at Henderson; that Rogersville was the shipping point from which defendant shipped all his produce; that within a radius of six miles from Rogersville were three or four country stores; that prior to the sale of defendant's business to plaintiff there were country collectors who traveled about and picked up produce in the country, and who marketed a portion of their produce at the defendant's store in Rogersville; that a number of said merchants whose country stores were near Rogersville had transferred their business to defendant, and ceased to patronize the plaintiff; that the merchant at Henderson whose business defendant purchased also handled produce, but did not ship the same, but sold a part of it to the defendant when he was running the business at Rogersville. The court dismissed the plaintiff's bill, and he appealed to this court. The respondent concedes that plaintiff is entitled to the relief prayed for if, by engaging in business at Henderson, he violated his contract. This is to be determined by the construction given the words "at Rogersville," found in the contract. Webster defines the word as follows: "Primarily, this word expresses the relations of presence, nearness in place. It is less definite than in or on; at the house may be in or near the house." In 4 Cyc. 365, it is defined as follows: "A word of somewhat indefinite meaning, whose significance is generally controlled by the context and attending circumstances denoting the precise sense in which it is used. Used in reference to place it often means `in' or `within'; but its primary idea is `nearness' or `proximity,' and it is commonly used as the equivalent of `near' or `about.'" In the Standard Dictionary, it is said: "With the names of cities and towns the use of `at' or `in' depends not chiefly upon the size of the place, but upon the point of view. When we think of inclusive space, we employ `in.'"

In the case of Rogers v. Galloway Female College, 64 Ark. 627, 44 S. W. 454, 39 L. R. A. 636, the defendant agreed to give the sum of $2,500 for the purpose of locating, building, and maintaining a college "at the town of Searcy." The college was located near Searcy, but not within its limits. A suit was brought to enforce the payment of the subscription, and payment was resisted, on the ground that the college was not located within the town of Searcy. The court held against the defendant, and said: "The preposition `at,' when used to denote local position, may mean `in, on, nearby,' etc., according to the context, denoting usually a place conceived of as a mere point." In Harris v. Theus, 149 Ala. 133, 43 South. 131, 10 L. R. A. (N. S.) 204, 123 Am. St. Rep. 17, the plaintiff had entered into a contract with the defendant, by the terms of which the latter agreed not to engage in the turpentine business so long as the former operated a turpentine still at Geneva. The plaintiff operated a turpentine distillery near Geneva, at a point a half mile from the corporate limits, and defendant claimed that plaintiff was not operating his distillery at Geneva within the meaning of the contract. Geneva was the shipping point from which the plaintiff shipped his product. The court in holding against the defendant said: "Upon the face of the contract and the averments of the bill, we find nothing that requires it to be held that `at,' as used in the contract, means within the corporate limits of Geneva, and the averment of the erection of the distillery near Geneva is sufficient." In Lovin v. Hicks (Minn.), 133 N. W. 575, the sufficiency of the service on the defendant was an issue. The law required the summons to be left "at the defendant's usual place of abode." The defendant used the first floor of the building as a store and the second for his family residence. The summons was left with his wife in the store. The court held it sufficient, and said: "The words `at his house of usual abode' do not mean `in' such house. The word `at' expresses the idea of nearness of place, and is less definite than `in' or `on.'" In Los Angeles v. Hannon, 159 Cal. 37, 112 Pac. 878, in construing a deed, the court said: "The word `at,' when applied to the place or location, is not treated as definitely locative. `At' the house may be in or near the house. A railroad was authorized by its charter to intersect another road `at Charlotte,' and it was held that an intersection a thousand yards outside Charlotte satisfied the requirement." In Rogers v. Burr, 97 Ga. 10, 25 S. E. 339, a subscription contract gave the subscriber the right "at" the expiration of three years to elect whether he would keep the stock, and it was held that he had the right to elect within a reasonable time after the expiration of the three years. In Davidson v. Crump Mfg. Co., 99 Mich. 501, 58 N. W. 479, the tenant's lease provided that he should have the right to remove his property from the leased premises "at the end of this term." The court held he had a reasonable time after the expiration of the term to remove his property. In Waynesville v. Satterthwait, 136 N. C. 226, 48 S. E. 661, the law provided that certain improvements should commence "at the courthouse" in a certain town. The improvements were commenced at the corporate line, and the court held they were commenced "at" the courthouse within the meaning of the law. To the same effect are O'Connor v. Nadel, 117 Ala. 595, 23 South. 532; Ray v. State, 50 Ala. 172; Minter v. State, 104 Ga. 753, 30 S. E. 989; Bartlett v. Jenkins, 22 N. H. 63. Mr. Anderson, in his dictionary of law, defines...