H. W. Gossard Co. v. Crosby

• Decision Date: 25 October 1906
• Citation: 132 Iowa 155,109 N.W. 483
• Parties: H. W. GOSSARD CO. v. CROSBY.
• Court: Iowa Supreme Court

132 Iowa 155

109 N.W. 483

H. W. GOSSARD CO.

v.CROSBY.

Supreme Court of Iowa.

Oct. 25, 1906.

Appeal from District Court, Woodbury County; J. L. Kennedy, Judge.

The opinion states the case. Affirmed.

Edmund S. Carr and E. M. Corbett, for appellant.

Hubbard & Burgess, for appellee.

WEAVER, J.

The petition, which is in equity, alleges that plaintiff is a corporation doing business in Chicago, Ill., as a manufacturer and wholesale and retail dealer in ladies' corsets, and in the importation and sale of trimmings, laces, silks, and dress furnishings, and that its sales of said merchandise are and have been largely carried on by and through the agency of traveling representatives; that on October 5, 1904, the plaintiff entered into a written contract with the defendant whereby said defendant undertook to work for the plaintiff for a period of three years as corset saleswoman and demonstrator at a stated weekly salary and expenses incurred in the service; that defendant did in fact enter the company's service under said contract, and continued therein for a period of about four months when, without any cause whatever, she abandoned said employment, and has ever since refused to perform her part of said contract. As the further statement of plaintiff's cause of action constitutes a claim which is new or at least unusual in the courts of this state we quote it at large in the language of the petition:

“Third. Plaintiff, further complaining of said defendant, alleges and avers: That the style of corsets as aforesaid manufactured, sold, and dealt in by it have a front lacing, leaving the back of the corset free from the heavy boning, eyeletting, and lacing, which obtain in the corsets in general use, and are otherwise distinguished as being highly flexible and acting as an abdominal and spinal support, and that for and during several years heretofore, in order to introduce and create a demand for and to sell said front lace corsets so manufactured by it as aforesaid, it has expended large sums of money in advertising the merits of the same, through the medium of traveling representatives, agents, and salespeople, and thereby has visited the various towns and cities of the United States showing, exhibiting and selling its said front lace corsets, and has also expended large sums of money in advertising its said front lace corsets in the leading periodicals and newspapers of the country, and which said front lace corsets were, at and before the time of the grievance hereinafter mentioned, widely known as a valuable and useful article of merchandise, and had acquired a high reputation as such, and commanded and still commands, as a valuable and useful article of merchandise, an extensive sale at the said cities or Chicago, Minneapolis, St. Paul, and Sioux City, and in the other cities and towns of the United States and Canada, and which for the last several years has been a source of great profit to said plaintiff. And to more effectively create a demand for the said front lace corsets so manufactured and sold by the plaintiff the plaintiff inaugurated the plan of giving lectures and demonstrations, by a lady lecturer and demonstrator, such lectures pertaining to the physical culture of woman and and the proper corsage to secure to her health, comfort, and physical beauty, and at the same time exhibiting and showing the many advantages of the corsets so manufactured and sold by plaintiff as adding to her physical beauty, comfort, and health, as well as the durability, fit, and advantages in said front lace corsets. That among the many duties and services of said defendant under the said contract, was that of such lecturer, demonstrator, and saleswoman of said front lace corset so handled and sold by the said plaintiff as aforesaid, and that said services were and are special, unique, and extraordinary in their character, and call for a person of high mental culture and refinement, of strong and pleasing individuality, good address, prepossessing appearance, striking physical development, possessing a knowledge of physical culture, and ability as a lecturer as well as the quality of high-class salesmanship, which characteristics, accomplishments, knowledge, attainments, and qualifications were and are possessed by the defendant in a marked degree, and which are rarely found in women, and the services of such a woman so combining such characteristics can rarely be secured, all of which were well known to said plaintiff as well as to the said defendant at the time of the making and entering into of said contract, and were the inducements which caused said plaintiff to enter into said contract with said defendant, and that the services and duties of said defendant under said contract were and are of such a character as to render it practically impossible for said plaintiff to replace her or to employ any other person to take her place, and has in fact been unable to find another competent person to take her place although it has made a diligent effort so to do, since the defendant refused to longer remain in the employ of plaintiff.

Fourth. Further complaining of the said defendant said plaintiff alleges and avers: That ever since said defendant wrongfully quit the employ of said plaintiff she has engaged in the sale and demonstration of a front lace corset similar in construction, design, make, and material to the front lace corset manufactured and sold by said plaintiff, and that the said defendant has wrongfully procured and engaged other persons to manufacture and sell such corsets, and has herself been engaged and is now engaged in visiting the various cities and towns of the United States, and at the present time is so engaged in the city of Sioux City and state of Iowa, in the advertisement, demonstration, and sale of said corsets and in giving lectures on the physical culture of woman, and the correct corsage to secure to her physical beauty, health, and comfort, and has used and is now using the knowledge, information, and skill gained and acquired by her while in the employ of this plaintiff in the furtherance of her said business, and is engaged in using the same methods as to the advertisement, demonstration, and sale of said corsets so wrongfully sold by her as aforesaid that were inaugurated, conceived, suggested, and taught her by the said plaintiff, and which methods she was hired and employed by said plaintiff to use, and has brought the said corsets now caused to be manufactured and sold by her into active competition with the corsets manufactured, sold, and dealt in by the plaintiff as aforesaid;and whereas, said plaintiff had theretofore and before the wrongful acts of said defendant, as above set forth, enjoyed the exclusive trade and sale of said corsets so made and sold by it as aforesaid, it is now brought into damaging and injurious competition with the said corsets so advertised, demonstrated, and sold by the said defendant as above set forth; and whereas, there had been theretofore no corset of similar design, style, or construction upon the market, and that said defendant has announced, and still continues to announce, her determination to continue in her wrongful conduct as aforesaid and to continue to advertise, demonstrate, and sell her said corsets, and to continue to bring the same into injurious and damaging competition with the said corsets handled and sold by this plaintiff, and threatens to continue the same in the future as in the past, in violation and breach of her said contract of hiring, and in utter disregard and contempt of the same. That the defendant is a person of small financial responsibility, and is unable to respond in damages to any judgment which plaintiff may recover for breach of said contract or the wrongful acts and misdoings of the defendant, as aforesaid. That the damage to said plaintiff, done and created by the said defendant as aforesaid, is not susceptible of pecuniary compensation, and cannot be estimated with any certainty, and is constantly recurrent, and that great and irreparable damage have resulted, and will result and be produced by the unlawful acts, and threatened acts, of said defendant, and that the same will cause great and irreparable damage to said plaintiff and to its said business, and that the plaintiff has no adequate legal remedy at law in the premises, and that the granting of an injunction herein, restraining and enjoining such acts, conduct and doings, as aforesaid, will prevent innumerable actions at law and constantly recurring damages, and will afford plaintiff its only relief in the premises.”

Upon these allegations, plaintiff demands damages in the sum of $10,000 and for a writ of injunction restraining the defendant, her agents, servants, and employés, from advertising, demonstrating, selling, or in any manner whatsoever disposing of the front lace corsets now advertised, demonstrated, and sold by the said defendant, her agents, servants, or employés, and which are now, or may be hereafter, possessed, owned, or controlled by said defendant, her agents, servants, or employés, or any other or similar kind or style of front lace corsets, either on the part or account of said defendant, or as agent, employé, demonstrator, or lecturer of and for others engaged in the sale thereof, and restraining and enjoining said defendant from any act, conduct, or doing whatsoever causing damage to said plaintiff by reason of the violation of the terms of said contract so entered into with plaintiff by said defendant.

The written contract attached to the petition contains the following stipulation as to the services to be performed by the defendant: “The party of the second part is to work for the party of the first part in the capacity of corset saleswoman and demonstrator, in such cities and states as the party of the first part may desire. The party of the second part agrees to give her entire time and attention and best abilities...