Eugene Dietzgen Co. v. Kokosky

• Decision Date: 20 June 1904
• Docket Number: 15,016
• Citation: 37 So. 24,113 La. 449
• Court: Louisiana Supreme Court
• Parties: EUGENE DIETZGEN CO. v. KOKOSKY

37 So. 24

113 La. 449

EUGENE DIETZGEN CO. v. KOKOSKY

No. 15,016

Supreme Court of Louisiana

June 20, 1904

Appeal from Civil District Court, Parish of Orleans; John St. Paul Judge.

Action by the Eugene Dietzgen Company against Herman Kokosky. Judgment for plaintiff. Defendant appeals. Affirmed.

Dart &amp Kernan, for appellant.

Charles Rosen, for appellee.

NICHOLLS J. MONROE, J. I concur in the decree.

OPINION

NICHOLLS J.

Statement of the Case.

The plaintiff alleged that by act executed on November 26, 1902, before Charles Rosen, notary, it purchased from the firm of S. T. Beer and Herman Kokosky, and the individual members thereof, the business of said firm, located in New Orleans, and since said date had operated said business for its own account. That, as one of the considerations of said purchase, said Samuel T. Beer and Herman Kokosky, and each of them, did expressly agree that they would not within the next five years succeeding the date of said agreement enter into or carry on the business of purchasing, selling, or manufacturing drawing materials or surveying instruments in this city, whether in their own names, or for the account of anybody else, directly or indirectly, as dealer or on commission, or as manager, proprietor, salesman, or otherwise, without the written consent of the said Eugene Dietzgen Company, nor within the next three months from the said date engage in the business of photographic supplies in this city, directly or indirectly, in any of the capacities aforesaid or otherwise, without its written consent.

That, in violation of his said agreement, and without the consent of petitioner, Kokosky was then engaged, and had been engaged since the 4th day of June, 1903, in carrying on the business of purchasing, selling, and manufacturing drawing materials, and surveying instruments at No. 157 Baronne street in this city, as vice president and manager, director, stockholder, and salesman of the Technical Supply Company, Limited, a corporation organized under the laws of this state by act on the 4th day of June, 1903, organized for the express purpose of carrying on the business of purchasing, selling, and manufacturing drawing materials, surveying instruments, and photographic supplies, and had since June 4, 1903, actually engaged in carrying on said business at said place as aforesaid. That the nature of said business was such as to be in great measure influenced and controlled by considerations of friendship and acquaintance, and other personal considerations, and this was one of the reasons for which petitioner obtained the agreement of Kokosky that he would not, for the period mentioned, in this city, enter into said business. That Kokosky had advertised in the local press the fact of his entering into said business. That Kokosky, in the furtherance of his said business, had actively solicited the trade and patronage of petitioner's customers, and had sought and was seeking to divert them from trading as heretofore with it (petitioner), and had in some cases actually diverted some of its customers from trading as heretofore with it to trading with him, and with the said Technical Supply Company, Limited.

That the said breach and violation of his contract and agreement by Kokosky was causing and would cause it (petitioner) irreparable injury and damage, by diverting from its business its trade and custom. That damages for said breach would be inadequate compensation to it, and it could have no adequate relief, except by the issuance of a writ of injunction restraining and enjoining said Kokosky from doing anything in contravention of his said obligation. That, if Kokosky was permitted to continue in the commission of the said acts complained of, it would cause damage to petitioner in an amount exceeding $ 2,000.

In view of the premises, it prayed that a writ of injunction issue, directed to said Kokosky, enjoining and prohibiting him from entering into, carrying on, conducting, or engaging in, without the written consent of petitioner, for the period of five years from November 26, 1902, the business of purchasing, selling, or manufacturing drawing materials or surveying instruments in this city as vice president, manager, director, stockholder, or salesman of the Technical Supply Company Limited, or in any other capacity whatsoever, or in his own name, or for the account of anybody else, directly or indirectly, as dealer or on commission, or as manager, proprietor, salesman, or otherwise, and from in any wise violating his said contract of November 26, 1902, with it, as set forth in act passed before Charles Rosen, notary public, on that date; that said Herman Kokosky be cited; and that there be judgment in favor of petitioner, Eugene Dietzgen Company, against defendant, Herman Kokosky, perpetuating and maintaining said writ of injunction; and for all general and equitable relief.

The defendant appeared and filed a rule to show cause why the injunction should not be dissolved on the following grounds:

"(1) That said injunction issued without justification or warrant in law.

"(2) That, as an inducement to mover to make the contract declared upon, the plaintiff covenanted to employ him for a period longer than the prohibitive period set forth in the contract, at a stipulated salary, and a certain interest in the profits of plaintiff's business in New Orleans. That said employment contemplated a position of equal dignity to that which he had previously held as a member of the selling firm, and he was in fact to be the representative of the plaintiff in New Orleans. That, after the execution of the contract sued on, plaintiffs carried out said additional agreement, and employed mover up to June 1, 1903, when without cause or provocation, they dismissed mover from their employ. That it would be inequitable to enforce the obligation of the said contract sued upon, under these circumstances.

"(3) That, to the knowledge of plaintiff, mover received no advantage or pecuniary consideration in the transaction sued on, and, but for the covenant of employment and interest in the profits, mover would never have bound himself to abstain from engaging in business in the same line in the city of New Orleans. That plaintiffs were guilty of fraud and bad faith in deliberately violating said agreement.

"(4) That mover was and had been a citizen of Louisiana, and a resident of New Orleans. That he was a man of family, and had no other art, trade, or profession than the skill and knowledge of the trade and business referred to in the instrument sued upon, and the enforcement of the prohibition would deprive himself and family of the means of making a living in the city of New Orleans and state of Louisiana, where all of his friends, social connections, and family were situated, and, in law, under the circumstances, the agreement in question was immoral, illegal, and void, and not binding upon mover."

It was agreed between the parties that as the prayer of plaintiff's petition was only for the injunction, and the rule brought up the entire merits of the case, the court, in deciding the rule, should dispose of the entire case, and render one judgment to cover the rule and the merits of the case, without further pleading or further evidence on the trial.

The district court rendered judgment dismissing the rule taken to dissolve the injunction, and made the same perpetual, at the costs of the plaintiff in rule, reserving to him any and all rights which he might otherwise have against the Eugene Dietzgen Company. In its judgment it adjudged and decreed that the ruling made by it on the trial admitting the introduction of parol evidence be recalled and set aside, and it ordered that the objection offered by the plaintiff in the suit of defendant in rule to the admission of parol testimony be maintained, and that said testimony be excluded. Plaintiff in the rule and defendant in the suit appealed.

Plaintiff, in his brief, makes the following points in the syllabus of his brief:

"(1) A contract by which one binds himself not to engage in a competing business in a particular place for a limited period is valid. Wintz v. Vogt, 3 La.Ann. 16; Verges v Forshee, 9 La.Ann. 294; Bergamini v. Bastian, 35 La.Ann. 63, 48 Am. Rep. 216; Solomon v. Diefenthal, 46 La.Ann. 900, 15 So. 183; Goldman v. Goldman, 51 La.Ann. 772, 25 So. 555; Meyer v. Labau, 51 La.Ann. 1731, 26 So. 463; Felix v. Weiss, No. 3,174, Court of Appeal; Eddy on Combinations, vol. 2, pp. 794, 812.

"(2) Parol evidence is not admissible to vary, contradict, or add to the stipulations of a written contract, complete on its face, in the absence of fraud or error. Rev. Civ. Code, arts. 2234, 2236, 2276; Moore v. Hampton, 3 La.Ann. 195; Cary v. Richardson, 35 La.Ann. 509; Clark's Ex'rs v. Farrar, 3 Mart. (O. S.) 252, 254, 255; Hart v. Clark's Ex'rs, 5 Mart. (O. S.) 614; Hebert & Dumare v. Maxime Dupaty, 42 La.Ann. 345, 7 So. 580; D'Aquin v. Barbour, 4 La.Ann. 441; Gould v. Bridges, 3 Mart. (N.S.) 692; Lynch v. Burr, 7 Rob. 96; Millard v. Smith, 25 La.Ann. 492; Wade v. Percy, 24 La.Ann. 173; City of Shreveport v. Le Rosen, 18 La.Ann. 577; Lesseps v. Wicks, 12 La.Ann. 739; Greenleaf, Evidence, 276; Ker v. Ker, 42 La.Ann. 870, 8 So. 595; 2 Wharton, Evidence, 1014; Naumberg v. Young, 44 N.J. Law, 331, 43 Am. Rep. 380; Welz v. Rhodius, 87 Ind. 1, 44 Am. Rep. 776; Tracy v. Union Ironworks Co., 104 Mo. 193, 16 S.W. 201.

"(3) Parol is admissible to show a condition precedent to the existence of a contract, for the purpose of showing there never was any agreement at all, but not to vary or add to a written agreement. Ware v. Allen, 128 U.S. 590, 595 9 S.Ct. 174, 32 L.Ed. 563; Burke v. Dulaney, 153 U.S. 228, 14 S.Ct. 816, 38 L.Ed. 698; Pym v. Campbell,...