Huston v. Dickson
| Decision Date | 19 March 1958 |
| Parties | Glenn HUSTON and Wayne Forbes, Appellants, v. John R. DICKSON and Emma A. Dickson, Respondents. |
| Court | Oregon Supreme Court |
Samuel Jacobson, Portland, argued the cause for appellants. With him on the brief was Leo Levenson, Fortland.
Robert A. Bennett, Portland, argued the cause for respondents. With him on the brief was John L. Foote, St. Helens.
Before PERRY, C. J., and ROSSMAN, BRAND, and McALLISTER, JJ.
This is a suit brought by plaintiff Huston against the defendants John R. and Emma A. Dickson for an injunction restraining the defendants from operating a dry cleaning establishment in Scappoose, Columbia County, Oregon, and for damages in the sum of $10,000. The substance of plaintiff's claim is that defendants sold the dry cleaning business and its good will to the plaintiff Huston and that in violation of plaintiff's rights defendants entered the field as a competitor, thereby damaging the plaintiff. In the midst of the trial Wayne Forbes was added as a party plaintiff. At the hearing in this court counsel for plaintiffs announced that plaintiffs had quit the business. He was asked, 'Well, you're not interested in an injunction now, are you?' to which counsel answered, 'Not now, we're out of business.' The case as it is presented in this court is therefore limited to a claim for damages. The circuit court entered a decree for defendants and the plaintiffs Huston and Forbes appeal.
It is alleged and admitted that for a long time prior to 27 February 1951 defendants had been engaged in the operation of a dry cleaning business in the city of St. Helens, Oregon, and had maintained an outlet in a district contiguous to said city and in Scappoose, and had established an extensive dry cleaning business with trade routes and a valuable good will. The complaint alleged in paragraph II that on or about 27 February 1951 defendants offered to sell the business equipment, trade routes and outlets, including good will, to plaintiff Huston
'representing to plaintiff that he could continue the operation of said business and enjoy the good will established by said defendants with the assistance of their regular employees, without any interference whatever from said defendants, since said defendants intended to permanently retire from the dry cleaning business for reasons of health and definitely did not plan to again establish or enter into the dry cleaning business in said trade areas nor in any manner interfere with the operation of such a business by plaintiff in said trade area.'
Defendants admit that on 27 February 1951 they offered to sell the business to plaintiff Huston, subject to certain conditions, and deny the rest of said paragraph.
Paragraph III of the complaint reads, in part, as follows:
'Relying upon the representations and promises of the defendants as above set forth, plaintiff, on said February 27, 1951, agreed to purchase from the defendants their dry cleaning business known as Majestic Cleaners as a going concern, together with the equipment and good will thereof for the sum of $22,500.00, which sum plaintiff agreed to pay to defendants in accordance with the terms of that certain agreement to sell dated March 17, 1951, * * *.'
It is further alleged that plaintiff immediately took possession and has been and is operating the business and until April 1953 enjoyed the benefits of the business and good will and the loyalty of the employees and fully performed the agreement on his part, which latter allegation is admitted.
Paragraph IV of his complaint alleges that in April 1953 (more than two years after the sale) 'in violation of the intent of the parties, and the terms of the contract of sale, and without the knowledge or consent of plaintiff, said defendants established and began to engage in the dry cleaning business in Columbia County, Oregon, in direct competition with plaintiff in his normal trade area and trade routes, and, to secure for themselves the business and good will which they sold to plaintiff.' (Italics ours.) It was then alleged and denied that defendants 'conspired with employees then working for plaintiff and who had previously worked for defendants to leave the employment of plaintiff and engage their services with defendants; that said defendants, directly and through said employees have wrongfully endeavored to divert, did wrongfully divert, and continue to divert trade from plaintiff by soliciting business from plaintiff's customers and potential customers of plaintiff in Columbia County.'
Plaintiff also alleged that defendants conspired with the employees to leave his employment for the purpose of wrongfully injuring his business and to assist defendants in diverting plaintiff's customers, and defendants had, since April 1953, continued to operate the dry cleaning business and wrongfully interfered with plaintiff's business and his enjoyment of the benefits of the good will theretofore sold by defendants to plaintiff.
It was further alleged that by reason of their wrongful acts defendants had materially and substantially deprived plaintiff of profits which would otherwise have accrued to him and wrongfully destroyed a major portion of his business and rendered the good will valueless and thereby caused plaintiff irreparable damage from loss of business and trade, and unless restrained defendants had threatened to and would continue to operate their business in direct competition with plaintiff to his further damage. Defendants admit the execution of the contract and that they expected to continue to operate their dry cleaning business as then conducted in Scappoose, Oregon, and denied all the other allegations.
We have italicized the allegation in plaintiff's complaint that defendants acted 'in violation of the intent of the parties, and the terms of the contract of sale.' The reason will now appear. The agreement to sell was attached to the complaint as Exhibit 'A', and its execution is admitted. It is unnecessary to set it forth in full. It is a conditional sale contract which describes specific personal property (chattels) and 'good will', and recites that the buyers shall pay therefor $22,500, part down and balance in monthly instalments. Provision is made for care of the property and for strict foreclosure in event of default.
This suit is brought for breach of a contract for the sale of chattel property and good will. The contract contains no restrictive covenant obligating the vendors to refrain from competing with the vendee and it contains no mention of 'trade routes and outlets.' True, the complaint alleges that defendants represented that plaintiff could enjoy the good will established by said defendants without interference and that defendants said they 'intended to permanently retire * * * and did not plan to again establish or enter into the dry cleaning business in said trade areas', but the complaint falls short of any direct allegation that the defendants promised to refrain from competing, and plaintiff presents no claim based on alleged fraud. Plaintiff did testify that in the process of negotiation prior to the execution of the contract the defendant Mr. Dickson told him that he would never go back in the cleaning business. Objection based on the Parol Evidence Rule was sustained as to this testimony and it was received only under the Equity Rule. Rebutting testimony was introduced by defendant, Mr. Dickson, who denied making any such promise. Assuming that the testimony concerning the preliminary negotiations was admissible under the Parol Evidence Rule, it would remain for the court to decide which witness should receive credence. But we hold that the trial court properly rejected that evidence. The agreement of the parties has been reduced to writing. It is complete on its face and parol evidence will not be received to vary its terms. ORS 41.740; Reddick v. Magel, 184 Or. 270, 195 P.2d 713, 197 P.2d 683; Feenaughty v. Beall, 91 Or. 654, 178 P. 600; Ramsdell v. Ramsdell, 65 Or. 428, 132 P. 1167; Davis v. Dees, 211 La. 229, 29 So.2d 774; and see 11 A.L.R.2d 1227 and 1253, et seq.
Plaintiffs apparently recognize that their case must rest upon the provisions of the written contract which contains no covenant against competing. They state the issue thus:
'The question is whether one who agrees to sell and deliver the good will...
To continue reading
Request your trial