Grace v. Orkin Exterminating Co.
| Decision Date | 14 January 1953 |
| Docket Number | No. 4840,4840 |
| Parties | GRACE v. ORKIN EXTERMINATING CO., Inc. |
| Court | Texas Court of Appeals |
Benckenstein, Wells & Duncan, Beaumont, for appellant.
Orgain, Bell & Tucker, Beaumont, for appellee.
The appellee, Orkin Exterminating Company, was formerly the employer of the appellant Grace, and brought this suit to restrain Grace's violation of certain restrictive covenants in the contract of employment. Orkin is referred to hereinafter as plaintiff, and Grace as defendant.
The contract was in writing. It was dated July 15, 1949, although it seems to have been executed by the parties some weeks after this date. The relevant parts are:
'State of Texas
'This agreement made and entered into this the 15th day of July, 1949, by and between Orkin Exterminating Co., Inc., maintaining its principal office and place of business in the State of Louisiana, County of Orleans, as party of the First Part, hereinafter referred to as the 'Company', and Harold Grace of the State of Texas, County of Orange, as Party of the Second Part, hereinafter referred to as the 'Employee'.
'Whereas, the undersigned Employee, Party of the Second Part, desires to enter into the employ of said Company; and 'Whereas, a great loss and damage will be suffered and sustained by the said Company if, during the term of this contract or for a period of two (2) years immediately following the termination of this contract, the said employee should for himself, or in behalf of, or in conjunction with any other person, persons, firm, company, partnership or corporation, call upon, solicit, sell, or endeavor to sell or solicit any customer or customers of the said Company, or use any of the methods and systems now employed by the Company in eradicating and/or controlling rats, mice, roaches, bugs, vermin, termites, beetles and other insects within the territory hereinafter set forth in Paragraphs 6 and 7 or any and all other things and products incidental to the business of the Company, or solicit, divert, or take away any such customers or the business or the patronage of the said Company during the aforesaid time, for which damage and loss by reason of his financial conditions and circumstances the said Employee could not be compelled by law to respond in damages in any action at law.
'Now, Therefore, the said parties hereto, for and in consideration of the premises and the mutual covenants and agreements hereinafter contained, and by them respectively to be kept and performed, covenant and agree as follows:
'1. The said Company agrees to employ and does by these presents employ Harold Grace as Manager, Beaumont, Texas and hereby agrees to pay or have paid to the said employee the sum of Two Hundred Dollars ($200.00) per month, plus a commission of 5% of deposits received through the Beaumont, Texas office of the Company from Pest Control and Termite Control accounts serviced out of the Beaumont office. (See Paragraph No. 11) or at such wages, salary or commission as may hereinafter or from time to time be agreed upon.
'* * * 5. Said Employee hereby expressly covenants and agrees, which covenant and agreement is of the essence of this contract, that, at no time during the term of this agreement or for a period of two (2) years immediately following the termination of this employment, (Regardless of whether said termination of this employment is voluntary or involuntary), will he for himself, or in behalf of any other person, persons, firm, partnership, company or corporation call upon any customer or customers of the said Company for the purpose of soliciting and/or selling to any of the said customers, any exterminating, fumigating or termite control service for the purpose of eradicating rats, mice, roaches, bugs, vermin, termites, beetles and other insects; nor will he in any way, directly or indirectly, for himself or in behalf of, or in conjunction with any other person, persons, firm, partnership, company or corporation, solicit, divert or take away any such customers of the said Company during the term of this employment, or for two (2) years immediately following the termination of this agreement.
'6. Said Employee further covenants and agrees that at no time during the term of this employment, or for two (2) years immediately following termination of this employment, (regardless of whether such termination is voluntary or involuntary) will he for himself, or in behalf of any other persons, partnerships, corporation or company, engage in the pest control business or any business engaged in the eradication and control of rats, mice, roaches, bugs, vermin, termites, beetles and other insects within the territory known as cities of Beaumont, Port Arthur and Orange, Texas, and Lake Charles, La., and a radius of 25 miles of each of said cities, nor will he directly or indirectly for himself, or in behalf of or in conjunction with any other person, persons, partnerships, corporation or company, solicit or attempt to solicit the business or patronage of any person, persons, firm, corporation, company or partnership within in the said territory for the purpose of selling a service for the eradication and/or control of rats, mice, roaches, bugs, vermin, termites, beetles and other insects, and such other incidental business and service now engaged in by the company, nor will the said Employee disclose to any person, whatsoever, any of the secrets, methods or systems used by the Company in and about its business.
'7. Said Employee further covenants and agrees that he will not, during the term of this employment nor for two (2) years immediately following the termination of this employment (regardless of whether said termination of this said employment is voluntary or involuntary) service contracts and accounts and/or work in the territory known as cities of Beaumont, Port Arthur and Orange, Texas and Lake Charles, La. and a radius of 25 miles of each of said cities, for himself, or for any other person, persons, firm, company, partnership, or corporation directly or indirectly, or in conjunction with any other person, persons, firm, company, partnership, or corporation, selling any kind of pest control service, or any service, items or products for the exterminating and/or control of rats, mice, roaches, bugs, vermin, termites, beetles, and other insects, and/or any other things, items and products now handled by or from time to time handled by the said Company or any products incidental to the business of the Company.
'8. It is mutually agreed and understood that the term of employment shall be for a period of not less than Three months after this date, provided the Employee faithfully performs his duties in a manner in keeping with this agreement and the rules and regulations of the employer, after which time the said employment may be terminated by either party upon the giving of Fifteen days notice to the other * * *.
'11. It is agreed and understood that employee shall receive a minimum compensation of $300.00 per month.
'In witness whereof, the parties hereto have hereunto set their hands and affixed their seals on this the day and year first above written.
Attest:
/s/ Theodore Oser
Theodore Oser Secretary
/s/ Robert E. Couhig
Witness
/s/ Mrs. L. Ryan
Witness
Orkin Exterminating Co., Inc. Company
/s/ Otto Orkin (Seal)
Otto Orkin President
/s/ Harold Grace (Seal)
Harold Grace Employee'.
The plaintiff is engaged in the business of destroying insects and animal pests which damage property. Prior to the date of the contract from which we have quoted, the defendant had established a small business in Beaumont, Texas which seems to have extended to Port Arthur, Texas, and which was managed by an employee of plaintiff's named Shank. This man wanted to leave this post and Couhig, who was Shank's superior officer and defendant's, too, suggested to the defendant that he take Shank's place. Couhig's office was, and still is, in New Orleans, Louisiana, and the defendant was then employed by plaintiff in New Orleans, and he resided there. Couhig was then and still is the manager of plaintiff's business in an area referred to in the proof as the New Orleans District. Plaintiff eventually accepted Couhig's suggestion and came to Beaumont, Texas and established his residence there; and he worked for plaintiff under the contract, performing the duties required of him, in the places named in that contract (and in other places) until his employment ended in November, 1951. During this period of time the defendant's services were satisfactory to the plaintiff but in October, 1951, the defendant requested an increase in pay which the plaintiff declined to grant and, acting through Couhig, elected to treat as a resignation certain statements...
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