Foulke v. Miller
| Decision Date | 14 March 1955 |
| Citation | 381 Pa. 587,112 A.2d 124 |
| Parties | Kirk FOULKE and Helena Foulke, His Wife, and William G. Bower, Individually and Jointly, v. H. Hessey MILLER and Dorothea B. Miller, His Wife, Individually and Jointly. and Kirk Foulke and Helena Foulke, His Wife, and William G. Bower, Trading as H. Hessey Miller, Appeal of H. Hessey MILLER. |
| Court | Pennsylvania Supreme Court |
Action to enjoin competition allegedly carried on in violation of covenant not to compete in contract for sale of business. The Court of Common Pleas, Delaware County, as of November Term 1952, No. 352, in Equity, arthur P. Bretherick, J., granted injunction. Defendant appealed. The Supreme Court, at No. 27 January Term, 1955, Bell, J., held that where contract for sale of business provided that sellers would not engage in business of buying or selling cinders or cinder aggregates Chancellor's finding that parties intended by contract that term cinders and cinder aggregates would include slag was supported by evidence, and defendants could be enjoined from selling slag.
Decree affirmed.
Wm. Chas. Hogg, Jr., Chester, for appellant.
James A. Cochrane, Paul C. Van Dyke, Cochrane & Van Dyke, Chester, for appellees.
Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY and MUSMANNO, JJ.
This case arose by a bill in equity for an injunction. The basic issue is: Did the agreements which prohibited defendants from dealing in cinders and cinder aggregates include slag?
The defendant, H. Hessey Miller, and his wife formerly owned a cinder business in the City of Chester, Pa., and traded under the name of ‘ H. Hessey Miller’ . On or about January 1, 1943 Miller and his wife sold to plaintiffs a one-half interest in their business, which was described as that of ‘ buying, selling and dealing in cinders and cinder products.’ The purchase price was $20,000. Pursuant to this written agreement plaintiffs and Miller and his wife entered into a written partnership agreement dated April 1, 1943, in which Miller agreed not to engage in a similar business within 300 miles of the City of Chester for a period of ten years.
On or about January 1, 1944 the defendants by written agreement sold to plaintiffs their remaining one-half interest in the business for the sum of $20,000 and their partnership was dissolved. Defendants in and by this 1944 agreement sold to plaintiffs ‘ all of our interest of every kind and nature whatsoever of, in and to the above-mentioned business, and all assets of every kind and nature whatsoever in connection therewith.’
Defendants also covenanted that neither of them would directly or indirectly, as an individual or as an officer or employee of a corporation, engage in the business of buying, selling or dealing in cinders or cinder aggregates, or use the name of ‘ H. Hessey Miller’ in the business of buying, selling or dealing in cinders or cinder aggregates.
The Chancellors found that a substantial part of the purchase price was paid for the good will, the right to the exclusive use of the name ‘ H. Hessey Miller’, and complete freedom from interference or competition by Miller in any phase of the business for a period of fifteen years within a radius of 400 miles of the City of Chester.
At the time of the written agreements above mentioned, the principal uses of the cinders in the business conducted (originally by defendants and later) by plaintiffs and defendants as partners were for the construction of cinder or cinder concrete building blocks, and as fill-in for the construction of driveways and public roads. Cinder products or cinder aggregates were apparently used synonymously. Aggregates are any designated inert material which put together into a conglomerated mass forms concrete, mortar and plaster.
Due to strikes in the coal regions and increases in the price of coal, and the development of slag (cinder), plaintiffs in 1949 turned most of their business into slag cinder as distinguished from coal cinder.[1] Plaintiffs' business now is fundamentally the same as it was in 1943 and 1944 and they now serve the same trade they served then.
The Chancellors found from the testimony of an experienced and impressive expert, Allen J. Johnson (who testified on behalf of plaintiffs) that cinders are the solid products of combustion and are found in three forms or conglomerates of three forms, namely, ash (formed at low temperatures), clinker (formed at medium temperatures) and slag (formed at high temperatures); and, accordingly, the term ‘ cinder’ is a generic term used to describe these three forms. Any one of the three forms of cinder can be formed in a boiler furnace or a blast furnace and any form of cinder can be changed into any other form. Coal cinder and slag cinder differ only quantitatively and not qualitatively in their chemical constituents because the percentage of elements in coal and in iron very in nature and, further, because there is a larger percentage of combustible matter in the coal cinders, since it is not subjected to as high temperature as iron ore in the blast furnace, and finally, the iron oxide is higher in the cinder taken from a fuel furnace than from a blast furnace because in the blast furnace operation, greater care is taken to extract the iron. Mr. Johnson further testified that the terms ‘ cinder’ and ‘ slag’ are used interchangeably and are virtually synonymous.
Plaintiffs' expert was corroborated, as the Chancellors further found, by the definition in Webster's International Dictionary of the terms ‘ cinders' and ‘ slag’ . While Webster gives six definitions of the word ‘ cinder’ the first definition is, The third definition is, ‘ * * * the residue of anything burnt, esp. the small particles of clinker left by burning soft coal.’
Slag is thus defined by Webster's Dictionary as
Defendant Miller apparently regretted the sale of his business because he attempted to persuade plaintiff, Kirk Foulke, to sell the business in 1945; and in 1948 attempted to persuade Foulke to hire him as a consultant. Later on in that year Miller asked Foulkes' permission to go into the slag business. Foulke replied, ‘ Hessey, that is still the cinder business. * * * you sold out fair and square and this is part of the cinder business.’ Miller replied, ‘ * * * there is no law can stop me from making a living * * *.’ Miller thereupon went into the slag business and held himself out as ‘ The Original H. Hessey Miller’ within eight blocks of plaintiffs' property.
The Chester Blast Furnace, which supplied plaintiffs with slag, was plaintiffs' sole available source of slag. In September, 1952, defendant, H. Hessey Miller, obtained the exclusive right to purchase slag from the Chester Blast Furnace. The loss of this source of supply will, unless restrained, force plaintiffs into bankruptcy.
The Chancellors found all the important facts in favor of the plaintiffs and issued an injunction against H. Hessey Miller.
With respect to (a) inferences and deductions from facts and (b) conclusions of law, both the court en banc and the appellate courts have the power to draw their own inferences and make their own deductions and conclusions. Barrett v. Heiner, 367 Pa. 510, 80 A.2d 729; In re Noonan's Estate, 361 Pa. 26, 63 A.2d 80; Payne v. Winters, 366 Pa. 299, 77 A.2d 407; Smith v. Smith, 364 Pa. 1, 70 A.2d 630; Kalyvas v. Kalyvas, 371 Pa. 371, 375-376, 89 A.2d 819, 821’ . Peters v. Machikas, 378 Pa. 52, 56, 105 A.2d 708, 710.
Defendant's principal contention is that the words ‘ cinders' and ‘ cinder products' and ‘ cinder aggregates' did not include slag in 1943 or 1944; and that since slag was not used by plaintiffs at the time of the agreements the parties could not have intended the agreements to include ‘ slag’ and defendant can now engage in the slag business.
The issue boils down to what was the intention of the parties when they used the terms ‘ cinders', ‘ cinder products' and ‘ cinder aggregates'.
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