Ebbeskotte v. Tyler, 18865

Decision Date28 May 1957
Docket NumberNo. 18865,18865
Citation142 N.E.2d 905,127 Ind.App. 433
PartiesEldon E. EBBESKOTTE, Appellant, v. Frances J. TYLER, Appellee.
CourtIndiana Appellate Court

Charles Davis, Mishawaka, for appellant.

Robert S. Currey, Mishawaka, for appellee.

COOPER, Judge.

The appellant brought this action to enjoin the appellee from violating an alleged negative covenant contained in a written contract between the appellant and the appellee. Appellee's demurrer to the complaint was sustained by the trial court, the appellant refused to plead further and judgment was rendered for the appellee, from which the appellant appealed, assigning as error the sustaining of the demurrer.

The substance of the averments in the appellant's amended complaint are:

'1. That plaintiff is now, and at all times herein mentioned was, an accountant engaged in the profession of public accounting and auditing in the City of Mishawaka, Indiana, and in the vicinity thereof.

'2. That on the 13th day of December, 1948, plaintiff, by a written contract, employed defendant as an accountant to assist him in his profession in said city and vicinity; that defendant agreed in said contract, that she would not during her employment or upon the termination thereof either for herself, or on behalf of any other person, persons, partnership, or association by whom she might be subsequently employed, or with whom she might be subsequently associated, accept, solicit or offer services from or to clients of plaintiff directly or indirectly, nor would she accept or solicit employment from clients of plaintiff directly or indirectly.

'3. That it was understood and intended by plaintiff and defendant, that defendant was restricted by such agreement from accepting or soliciting employment, as an accountant, directly or indicrectly, for herself or on behalf of any other person, persons, partnerships or associations by whom she might be subsequently employed or with whom she might be subsequently associated, in the City of Mishawaka, Indiana and in the vicinity thereof.

'4. That from said 13th day of December, 1948, until the 27th day of October, 1954, defendant worked for plaintiff and performed such duties for which she was employed.

'5. That during said time which defendant was employed by plaintiff, as aforesaid, defendant became fully acquainted with plaintiff's methods in conducting his profession and became personally acquainted with plaintiff's clients and their residences.

'6. That the employment of defendant terminated on the 27th day of October, 1954, and upon the * * * day of January, 1955, defendant opened an office in the City of Mishawaka, Indiana, for public accounting and auditing.

'7. That since said * * * day of January, 1955, defendant has been engaged, and now is engaged, directly and indirectly through others in accepting and soliciting employment from plaintiff's clients, in violation of her agreement with plaintiff.

'8. That the employment of plaintiff's said clients were, and are, of great value to him, and he spent considerable time, effort and money in building up his business and securing said clients.

'9. That defendant's aforesaid acceptance and solicitation of employment from plaintiff's clients has greatly damaged plaintiff, and that the continued action of defendant in that regard will cause further damage to plaintiff.

'Wherefore, plaintiff prays that defendant be enjoined from accepting and soliciting employment from plaintiff's clients, and that an account may be taken of the damages sustained by plaintiff by reason of the violation of said agreement by the defendant, and judgment be rendered in his favor in that amount, and for such other proper relief as may be just and equitable.'

The record before us shows that the written contract of employment, which was entered into on the 13th day of December, 1948, between the appellant and appellee herein and which was made a part of the foregoing complaint, omitting signatures, reads as follows:

'This Agreement, made in the City of Mishawaka, State of Indiana, on December 13, 1946, by Eldon E. Ebbeskotte, public accountant, having principal place of profession at 106 Lincolnway West, City of Mishawaka, State of Indiana (herein called the 'First Party'), and Francis J. Tyler, residing at Indiana Avenue, Mishawaka, Indiana (herein called the 'Second Party'), witnesseth:

'Whereas, the First Party is engaged in the profession of public accounting and auditing in the said city of Mishawaka and in the vicinity thereof and has built and established a valuable and extensive accounting service in said city and vicinity; and

'Whereas, great loss and damage will be suffered and sustained by the First Party, if during the term of her employment, or upon the termination, thereof, the Second Party, either for herself, or on behalf of any other person, persons, partnership or association by whom she may be subsequently employed, or with who she may be subsequently associated, should solicit, or offer service or accept employment from clients of First Party.

'Now, therefore, it is mutually agreed, as follows:

'That Second Party will not during her employment or termination thereof either for herself, or on behalf of any other person, persons, partnership or association by whom she may be subsequently employed, or with whom she may be subsequently associated, accept, solicit or offer service from or to clients of First Party directly or indirectly, nor will she accept or solicit employment from clients of First Party directly or indirectly.

'That the employee covenants that she will not, during or after her employment, disclose any information obtained by her while in the employ of the Employer to any person not employed by the Employer (and or corporation), without the prior written consent of an officer of the Employer.

'That the Employee covenants that she will not, during the term of her employment and for two (2) years thereafter divulge to any person, firm, association or corporation, except by the Employer's express written order, the names or addresses of any clients of the Employer, or any information concerning any of such clients.

'That First Party will set up bonus in escrow to be handed over to Second Party at the end of two-year (2) employment period. If employment is discontinued before two year period, it is understood that bouns is automatically voided and reverts to First Party in consideration of the cost of training new employ. Bonus will be entirely separate from salary and will be handled as agreed upon in writing between First Party and Second Party.

'In Witness Whereof, the parties hereto have hereunto set their hands and seals, the day and year first above written.'

The demurrer filed by the appellee and sustained by the trial court is based upon the statutory grounds that, 'said complaint does not state facts sufficient to constitute a cause of action'. The memorandum attached to said demurrer reads as follows:

'The complaint is based upon a written contract between the parties to this action, a copy of which contract is filed with the complaint and made a part thereof by the plaintiff. Said contract attempts to impose a restraint upon the activities of the defendant, as an accountant and otherwise, which restraint is unreasonable for the reason that the restraint is unlimited as to time and is not confined to a reasonable area. Because of said unreasonableness, and the fact that the contract attempts to place a restriction on defendant's business activities in fields other than those covered by her contract of employment with the plaintiff, the restraint is contrary to the public policy and is invalid and not enforcible in any manner.'

The assigned error before us is based upon the trial court sustaining the above demurrer.

It is the general rule of law that in determining the correctness or the lack of correctness of the court's ruling on the demurrer, we are governed by the rule that for the purpose of the demurrer, allegations of the complaint will be construed most strongly in favor of pleadings, as the demurrer admits facts not only directly and specifically alleged in the complaint, but also all facts that can be implied from allegations by reasonable and fair intendment. Lincoln Operating Co. v. Gillis, 1953, 232 Ind. 551, 114 N.E.2d 873; Dipert v. Killingbeck, 1953, 124 Ind.App. 18, 112 N.E.2d 306, 885.

Likewise our court has said: 'A complaint which entitled the complaint to any relief is good as against a demurrer.' Halstead v. Stahl, 1911, 47 Ind.App. 600, 94 N.E. 1056.

The demurrer presents the following questions: (1) Is the contract between the parties unreasonable in that it is unlimited as to time and is not confined to a reasonable area, and, (2) Is the contract against public policy, invalid and unenforcible in...

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    ...such was the fair and reasonable course. See Fullerton Lumber Co. v. Torborg, 270 Wis. 133, 70 N.W.2d 585 (1955); Ebbeskotte v. Tyler, 127 Ind.App. 433, 142 N.E.2d 905 (1957); Redd Pest Control Co. v. Heatherly, 248 Miss. 34, 157 So.2d 133 (1963); Credit Bureau Management Co. v. Huie, 254 F......
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    ...in the complaint, but also all facts that can be implied from allegations by reasonable and fair intendment'. Ebbeskotte v. Tyler, 1957, 127 Ind.App. 433, 439, 142 N.E.2d 905, 908; Lincoln Operating Co. v. Gillis, 1953, 232 Ind. 551, 114 N.E.2d 873; Dipert, Admx., etc. v. Killingbeck, et al......
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