Janet Realty Corp. v. Hoffman's, Inc.

CourtUnited States State Supreme Court of Florida
Citation17 So.2d 114,154 Fla. 144
Decision Date23 December 1943
PartiesJANET REALTY CORPORATION v. HOFFMAN'S, Inc.

17 So.2d 114

154 Fla. 144

JANET REALTY CORPORATION
v.

HOFFMAN'S, Inc.

Florida Supreme Court

December 23, 1943


On Rehearing Feb. 29, 1944.

Further Rehearing Denied March 31, 1944. [17 So.2d 115]

[154 Fla. 146] Redfearn & Ferrell, of Miami, for petitioner.

Simonhoff & Simonhoff and Ward & Ward, all of Miami, for respondent.

PER CURIAM.

Certiorari is denied on authority of Jack Davis, trading and doing business as Jack Davis Motors, Petitioner, v. First National Bank of Miami, at Miami, Florida, Respondent, decided Nov. 22, 1943. [1]

BUFORD, C. J., and BROWN, THOMAS, and SEBRING, JJ., concur.

TERRELL and CHAPMAN, JJ., dissent.

On Rehearing Granted.

CHAPMAN, Justice.

On January 6, 1943, the Civil Court of Record of Dade County, Florida, sustained a motion to strike a plea to an action on a promissory note and accordingly entered a judgment for the plaintiff. An appeal therefrom was perfected to the Circuit Court, and after counsel was heard, an order of reversal was entered, thereby holding that the stricken plea constituted a good defense to the aforesaid action. The original plaintiff, by petition for a statutory writ of certiorari filed here, contends that the order of reversal as entered by the Circuit Court of Dade County was erroneous and should be quashed.

The stricken plea alleged, in substance, that the plaintiff below owned described real estate situated in Miami Beach and located within about one block of a cafeteria or restaurant owned and operated by the defendant; the plaintiff contemplated the construction of a building on these premises and the operation of a cafeteria or restaurant (or the leasing of the property to a tenant for the construction or operation of a cafeteria or restaurant), which, if carried out, according to plans, would ultimately result in competition to the cafeteria or restaurant business of the defendant.

On April 22, 1941, the parties effected an agreement, reduced it to writing, and signed the same. The terms of the written agreement restricted the use of the described land [154 Fla. 147] from date thereof until September 1, 1945. The consideration for the instrument was $8,900. The sum of $2,900 was paid in cash and the residue represented by four promissory notes. The first for $1,500 matured on or before January 15, 1943; the second for $1,000 matured April 15, 1942; the third for $2,000 matured January 15, 1943; and the fourth for $1,500 matured January 15, 1944. The first note on its maturity was paid, and this suit was filed to enforce the payment of the second maturing note.

The consideration of the notes was that the payee and owner of the real estate, between the dates of April 22, 1941, and September 1, 1945, would not directly, or indirectly, operate, engage in or construct a cafeteria or restaurant on the described land, nor would it enter into a lease of the property to any tenant during the period for the construction and operation of a cafeteria or restaurant, and the owner of the land agreed, if the property was sold and conveyed during the period, the owner would place in the deed of conveyance a [17 So.2d 116] restrictive clause to the effect that the grantee in the proposed deed, if any, could not or would not be permitted to use the described property for cafeteria, restaurant or eating purposes until after September 1, 1945. Attached to the plea was a copy of the written instrument and by appropriate language made a part of the stricken plea.

The question presented for a decision by the record is whether or not the written agreement, supra, entered into between the parties, is void and unenforceable on the theory that it is in restraint of trade and contrary to public policy? The validity or invalidity of an agreement that in operation tends to restrain trade or to monopolize is in general determined by the elements of whether it is or is not injurious to the public. If injurious in any perceptible degree to any considerable portion of the public, the agreement is contrary to public policy and will not be enforced. If not injurious to the public, it may be enforced. See Stewart v. Stearns & Culver Lbr. Co., 56 Fla. 570, 48 So. 19, 24 L.R.A.,N.S., 649. Public policy favors competition in trade and opposes unreasonable restraints on useful commodities when the public welfare is injuriously affected.

[154 Fla. 148] Courts indulge the presumption that all contracts are lawful and if illegality exists it must be alleged and proven. Contracts existing between parties, generally, where no attempt is made to limit production, fix prices, or control commodities, are valid and enforceable. See Lee v. Clearwater Growers' Ass'n, 93 Fla. 214, 111 So. 722.

Contracts entered into between parties, having as their objectives the removal of a rival competitor in a business, are not to be regarded as contracts in restraint of trade, because they do not close the field of competition but affect only the parties to the agreement. See Massari v. Salciccia, 102 Fla. 847, 136 So. 552; Love v. Miami Laundry Co., 118 Fla. 137, 160 So. 32; Ericson v. Jayette, 149 Fla. 82, 5 So.2d 453; Wilson v. Pigue, 151 Fla. 734, 10 So.2d 561.

The facts in the case at bar can or may be distinguished from similar cases considered by this Court. We have here the owner of land by contract stipulating that the described land for a period of approximately four and one-half years shall not be used as a site for the location of a cafeteria or restaurant. If the property is sold by the owner during the period, the deed or conveyance shall contain the restrictive covenant and for this four and one-half year agreement the consideration is $8,900.

Williston on Contracts, Vol. 5, Rev.Ed., par. 1642, pp. 4602-4606, states the rule, viz:

'1642. Sale or Lease of Property with Restrictive Covenant,--The seller or lessor of property as distinguished from a business or good will may by a restrictive promise reasonably limited agree to refrain from himself engaging in a business or from disposing of his property in such a way that others can engage in a business which would...

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13 practice notes
  • Tri-Continental Fin. Corp. v. Tropical M. Enterprises, No. 17543.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 8 Abril 1959
    ...Co. v. Bay, 200 U.S. 179, 26 S.Ct. 208, 50 L.Ed. 428; Hedrick v. Perry, 10 Cir., 102 F.2d 802; Janet Realty Corp. v. Hoffman's Inc., 154 Fla. 144, 17 So.2d 114; Kentucky Nat. Gas Corp. v. Indiana Gas & C. Corp., 7 Cir., 118 F.2d 831; Schwartz v. Van Der Plate & Co., 132 N.J.Eq. 132, 27 A.2d......
  • Hilkmeyer v. Latin Am. Air Cargo Expediters, Inc.
    • United States
    • United States State Supreme Court of Florida
    • 24 Abril 1957
    ...writ of certiorari is issuable or not in the sound judicial discretion of the Supreme Court. Janet Realty Corp. v. Hoffman's, Inc., 1943, 154 Fla. 144, 17 So.2d 114. Although this case presents a close question it involves a serious enough departure from the essential requirements of law to......
  • CONSOLIDATED GAS CO. OF FLORIDA v. City Gas Co., No. 83-1010-CIV-MARCUS.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • 4 Octubre 1985
    ...cases for this finding, Stewart v. Stearns & Culver Lumber Co., 56 Fla. 570, 48 So. 19 (1908) and Janet Realty Corp. v. Hoffman's Inc., 154 Fla. 144, 17 So.2d 114 (1944). Both recite the common law rule that agreements in restraint of trade are unenforceable as contrary to public...
  • Miami Electronics Center, Inc. v. Saporta, No. 91-2118
    • United States
    • Court of Appeal of Florida (US)
    • 21 Abril 1992
    ...208 So.2d 644, 647 (Fla. 3d DCA 1968). In any event, the non-compete covenant was entirely lawful. Janet Realty Corp. v. Hoffman's Inc., 154 Fla. 144, 148, 17 So.2d 114, 116 (1943) ("Contracts ... having as their objectives the removal of a rival competitor in a business are not to be regar......
  • Request a trial to view additional results
13 cases
  • Tri-Continental Fin. Corp. v. Tropical M. Enterprises, No. 17543.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 8 Abril 1959
    ...Co. v. Bay, 200 U.S. 179, 26 S.Ct. 208, 50 L.Ed. 428; Hedrick v. Perry, 10 Cir., 102 F.2d 802; Janet Realty Corp. v. Hoffman's Inc., 154 Fla. 144, 17 So.2d 114; Kentucky Nat. Gas Corp. v. Indiana Gas & C. Corp., 7 Cir., 118 F.2d 831; Schwartz v. Van Der Plate & Co., 132 N.J.Eq. 132, 27 A.2d......
  • Hilkmeyer v. Latin Am. Air Cargo Expediters, Inc.
    • United States
    • United States State Supreme Court of Florida
    • 24 Abril 1957
    ...writ of certiorari is issuable or not in the sound judicial discretion of the Supreme Court. Janet Realty Corp. v. Hoffman's, Inc., 1943, 154 Fla. 144, 17 So.2d 114. Although this case presents a close question it involves a serious enough departure from the essential requirements of law to......
  • CONSOLIDATED GAS CO. OF FLORIDA v. City Gas Co., No. 83-1010-CIV-MARCUS.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • 4 Octubre 1985
    ...cases for this finding, Stewart v. Stearns & Culver Lumber Co., 56 Fla. 570, 48 So. 19 (1908) and Janet Realty Corp. v. Hoffman's Inc., 154 Fla. 144, 17 So.2d 114 (1944). Both recite the common law rule that agreements in restraint of trade are unenforceable as contrary to public...
  • Miami Electronics Center, Inc. v. Saporta, No. 91-2118
    • United States
    • Court of Appeal of Florida (US)
    • 21 Abril 1992
    ...208 So.2d 644, 647 (Fla. 3d DCA 1968). In any event, the non-compete covenant was entirely lawful. Janet Realty Corp. v. Hoffman's Inc., 154 Fla. 144, 148, 17 So.2d 114, 116 (1943) ("Contracts ... having as their objectives the removal of a rival competitor in a business are not to be regar......
  • Request a trial to view additional results

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