Goff v. Saxon

• Decision Date: 27 February 1917
• Citation: 192 S.W. 24,174 Ky. 330
• Parties: GOFF v. SAXON.
• Court: Kentucky Court of Appeals

192 S.W. 24

174 Ky. 330

GOFF v. SAXON.

Court of Appeals of Kentucky.

February 27, 1917

Appeal from Circuit Court, Fayette County.

Injunction by Anna Chandler Goff against Edward Saxon. From judgment for defendant, plaintiff appeals. Affirmed.

Allen &amp Duncan, of Lexington, for appellant.

Hunt &amp Bush and J. T. Farmer, all of Lexington, for appellee.

CARROLL J.

This suit was brought by the appellant as plaintiff to enjoin the appellee as defendant from teaching elocution or dramatic art in any of its branches in Lexington or within 23 miles thereof, or in the cities of Frankfort or Danville, within a period of five years from and after June, 1915. The lower court sustained a general demurrer to the petition and amended petition, and the plaintiff appeals.

The cause of action of the plaintiff was rested on an alleged violation of clause 4 of a contract between the parties reading as follows:

"This agreement made and entered into this July 26, 1913, by and between Edward Saxon, of Nashville, Tenn., party of the first part, and Anna Chandler Goff, of the Arts Club, Lexington, Ky. party of the second part. Witnesseth, that whereas, party of the second part is desirous of securing the service of said party of the first part, as teacher of expression and dramatic art, all of which is to be done under the general direction of said party of the second part:

Now, therefore, said party of the first part, in consideration of the promises and agreements of said party of the second part herein contained, hereby promises and agrees:

First. To be in Lexington, Ky. on or before the 15th of September, 1913, and to teach, instruct, and direct such pupils and clubs as may be assigned him by party of the second part for instruction in any branch called dramatic art as taught and directed by party of the first part. Party of the first part agrees to avail himself of every opportunity to secure pupils, private or in classes, in Lexington or in adjacent towns, and to organize dramatic clubs where it seems advisable. Said party of the first part hereby agrees not to engage in the work of teaching or directing during the time of this contract, except under the direction of said party of the second part, as herein agreed upon.

Second. Said party of the first part hereby agrees that the term of this contract shall be for a period of ten (10) school months, of four weeks each, from September 1, 1913, to June 6, 1914.

Third. Said party of the first part agrees to do all such teaching as may be assigned him by the party of the second part in Lexington, Ky. or in any adjacent towns, within a radius of 23 miles, and in Frankfort or in Danville.

Fourth. Said party of the first part hereby agrees not to engage in the city of Lexington, Ky. (nor within 23 miles thereof, or in Frankfort or in Danville), in the business of teaching or directing in elocution or dramatic art in any of its branches for a period of five years after the termination of this contract, or any contract between the parties named.

Fifth. To pay said party of the second part fifteen dollars and fifty cents ($15.50) per month for the rent of studio at the Arts Club beginning September 15, 1913, and continuing to the end of the contract between the parties herein named.

In consideration whereof said party of the second part promises and agrees:

First. To give her influence and the influence of the Arts Club to the party of the first part for the first ten months covered by this contract without any commission.

Second. To furnish registrar that will attend to all business connected with said department.

Third. That after the expiration of this contract for ten months a second contract will be entered upon as follows for the school year beginning September 1, 1914: The party of the first part will receive three-fourths (3/4) of the gross receipts, and the party of the second part will receive the remaining one-fourth (1/4) of the gross receipts from all teaching and directing of said party of the first part either in Lexington or in adjacent towns as covered by the first part of this lease. With the exception of this charge concerning commission to party of the second part, the remainder of the contract will remain absolutely the same for the school year beginning September, 1914, and until the termination of the final contract.

Fourth. To furnish a registrar that will attend to all business connected with said department."

We are advised by the briefs of counsel that the lower court was influenced to sustain the demurrer to the petitions of the plaintiff upon the ground that the contract was so lacking in mutuality as to be unenforceable by either party, and upon the further ground that it was so unjust and unequal in its effect upon the defendant that a court of equity would not specifically enforce it.

The construction of this contract is, of course, a matter for the court, and to the contract alone we must look in...