Downing v. Lewis

• Decision Date: 05 October 1899
• Citation: 80 N.W. 261,59 Neb. 38
• Parties: DOWNING v. LEWIS ET UX.
• Court: Nebraska Supreme Court

59 Neb. 38

80 N.W. 261

DOWNING

v.LEWIS ET UX.

Supreme Court of Nebraska.

Oct. 5, 1899.

Syllabus by the Court.

1. The contract in suit (one of the class known as “contracts in restraint of trade”) being limited as to time and territory, and its stipulations reasonable, held valid and enforceable by injunction.

2. The said contract determined not so contrary or obnoxious to public policy as to render it invalid.

3. The question of the ownership or interest of one of the parties to a contract of sale of a business and “good will” determined not placed in issue by the pleadings.

4. A married woman, who joined with her husband in a contract of sale, held to have by her acts acquiesced in the payment of the consideration to him.

Appeal from district court, Buffalo county; Sullivan, Judge.

Action by George H. Downing against Albert T. Lewis and wife. Judgment for defendants, and plaintiff appeals. Reversed.Marston & Marston, for appellant.

E. C. Calkins, W. D. Oldham, and H. M. Sinclair, for appellees.

HARRISON, C. J.

August 6, 1895, there was sold to the appellant the business and good will of the Lewis Laundry, located in the city of Kearney. The agreement of sale and purchase was embodied in a written instrument which was signed by the appellees herein, who, it appears, were husband and wife. It was of the expressed covenants on the part of the appellees that they would not, for themselves nor for other persons, engage in the laundry business in the city of Kearney during five years from August 11, 1895. The present action was commenced by appellant, the basis of the complaint being an alleged violation on the part of the appellees of the stipulation of the contract to which we have just referred. The prayer of the petition was that the appellees be enjoined from further violations of their agreement. To the pleading appellees made objections, which were treated as in effect a general demurrer; and as a result of a hearing the restraining order which had been allowed was vacated, and the cause dismissed. An appeal was perfected to this court, and, on hearing, the judgment was reversed, and the case remanded to the district court for further proceedings. The opinion rendered is reported in 56 Neb. 386, 76 N. W. 900. After the suit was again lodged in the district court, separate answers were filed for appellees, to which there were replies, and of the issues joined there was a trial, which resulted in a judgment of dismissal of the action, and the plaintiff again appeals.

By the former decision in the case on appeal to this court, it was established that the agreement between the parties is valid and capable of enforcement by injunction. Ordinarily the adjudication to which we have referred would be the law of the case on the points necessarily involved in the litigation, and covered by the decision; but it is insisted herein that the answers and evidence cast additional light on the subject, and call for a further consideration of the involved matters. We have concluded to further discuss at least some, if not all, of them.

At the close of the trial which occurred after the cause was returned to the district court from this, the following findings were made: “The court finds that the contract as alleged and set out in the petition was signed by the defendants, and further finds that the defendants were acquainted with the terms of said contract at the time they signed the same, and that the same was signed voluntarily by them. (2) That at that time they expected to leave the city of Kearney, and did not expect to engage in the business of laundering in said city. (3) The court further finds that at the time said contract was made, and long prior thereto, the plaintiff, Downing, was engaged in the laundry business in said city, and was running what was known as the Kearney Steam Laundry, and that his purpose in purchasing the business and good will of the defendants, and his only purpose, was to do away with the competition which they in their business made to his business, and to secure their patrons. (4) The court further finds that the defendant Mary J. Lewis received no consideration for said sale or for said contract, but that the money went to her husband, and he alone was conducting the business at that time. (5) The court further finds that none of the machinery or other appliances of the business used by the defendants were delivered to the plaintiff, and that neither the plaintiff nor any one in his stead took charge of said business or operated said business after said purchase.” The answer of Albert F. Lewis was as follows: “(1) That, at the time of the signing by him of the contract set out in said petition, he supposed it was limited to the conducting of a laundry business by the defendants in the city of Kearney; (2) that there was no stipulation...