Durbrow Comm'n Co. v. Donner

• Decision Date: 04 March 1930
• Citation: 201 Wis. 175,229 N.W. 635
• Parties: DURBROW COMMISSION CO. v. DONNER.
• Court: Wisconsin Supreme Court

201 Wis. 175

229 N.W. 635

DURBROW COMMISSION CO.

v.DONNER.

Supreme Court of Wisconsin.

March 4, 1930.

Appeal from an order of the Circuit Court for Milwaukee County, overruling a demurrer to the complaint; John J. Gregory, Circuit Judge.

Action by the Durbrow Commission Company against Henry C. Donner. From an order overruling a demurrer to the complaint, defendant appeals.--[By Editorial Staff.]

Reversed, with directions.

Action begun July 11, 1929; order entered October 10, 1929. Defendant appeals.

The action is in equity to enjoin the defendant from violating an agreement in terms as follows:

“Durbrow Commission Company, 382-5th Street, Milwaukee, Wisconsin.

Gentlemen: I hereby agree that for a period of two years beginning February 9, 1929, I will not be connected in any capacity with any business selling either poultry or veal, or both, wholesale, in Milwaukee County.

Henry C. Donner.

Dated: February 11, 1929.”

The defendant demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The complaint sets out the contract verbatim and states that the agreement was executed by defendant “for a consideration paid by the plaintiff”; that defendant prior to execution of the agreement had been a stockholder and employee of the plaintiff corporation which is engaged as a commission merchant in selling at wholesale poultry and veal, but does not state that the agreement was executed in connection with or as incident to a sale of the defendant's stock or any other contract. It states violation of the agreement and injuring plaintiff, and other facts sufficient to constitute a cause of action for injunctional relief, except as validity of such an agreement depends upon connection with a sale of a business or a substantial interest therein, or some other form of contract to which it pertains.Olwell & Brady and Geo. A. Gessner, all of Milwaukee, for appellant.

Pellette & Zillmer, of Milwaukee, for respondent.

FOWLER, J.

[1] The case is determined by the principles applicable to contracts in restraint of trade. Such contracts are against public policy and unenforceable, unless they are incidental to and in support of a contract of sale by which the one making the agreement sells a business or some substantial interest therein, or are incidental to some other contract. 24 Am. & Eng. Enc. Law (2d Ed.) 851; 13 Corp. Jur. p. 477; 6 Ruling Case Law, p. 790; 3 Williston, Contracts, p. 2876, § 1637; U. S. v. Addyston, etc., Co. (C. C. A.) 85 F. 271, 281. In the cases involving contracts in restraint of trade that this court has been called upon to determine, the agreement restraining activities by defendant has been incidental to the main purpose of some contract in connection with which it was made, and the relief sought was necessary to secure to the plaintiff the fulfillment of that purpose and the benefits which were to accrue to him from the contract to which the agreement was incidental or in which it was included. Such cases are Richards v. American Desk & Seating Co., 87 Wis. 503, 58 N. W. 787, and My Laundry Co. v. Schmeling, 129 Wis. 597, 109 N. W. 540, in the last of which the rule stated is recognized at page 606 of 129 Wis., 109 N. W. 540, 544, where the court says that the law...