Jenkins v. King, No. 28174.

Docket NºNo. 28174.
Citation65 N.E.2d 121, 224 Ind. 164
Case DateFebruary 26, 1946
CourtSupreme Court of Indiana

224 Ind. 164
65 N.E.2d 121

JENKINS et al.
v.
KING.

No. 28174.

Supreme Court of Indiana.

Feb. 26, 1946.


Action by Atwood L. Jenkins and another against Lowell M. King to enjoin defendant from violating an alleged negative covenant. Judgment for defendant and plaintiffs appeal. The case was transferred from the appellate court under Burns' Ann.St. § 4-215.

Affirmed.

Superseding opinion of Appellate Court in 61 N.E.2d 474.

YOUNG, C. J., dissenting.

[65 N.E.2d 122]

Appeal from Wayne Circuit Court; Gustave H. Hoelscher, Judge.
Denver C. Harlan and Clarence M. Brown, both of Richmond, for appellants.

Kane, Blain & Hollowell, of Indianapolis, and Gardner, Jessup, Harrington & Haworth, of Richmond, for appellee.


GILKISON, Judge.

Appellants brought this action to enjoin appellee from violating an alleged negative covenant contained in a written contract between appellants and appellee. Appellee's general demurrer to the complaint was sustained by the court below, appellants refused to plead further and judgment was rendered for appellee, from which appellants appeal, assigning as error the sustaining of the demurrer.

In determining the correctness or lack of correctness of the court's ruling on the demurrer we are governed by the rule that, for the purposes of the demurrer, all facts well pleaded are taken as true. The substance of the averments in appellants' complaint is that at the time of the execution of the contract appellants had and owned an established general insurance agency in the city of Richmond, Wayne County, Indiana, where they solicited and wrote all kinds of insurance, and kept a complete list of policyholders, monthly expirations, and names and addresses of insurance prospects.

That they entered into a written contract of employment with appellee on November 22, 1939, for a period of two years commencing January 1, 1940, ‘a copy of which contract is filed herewith, made a part hereof, and marked Exhibit A; that pursuant to said contract and under the terms and conditions thereof said defendant did so enter the employ of the plaintiffs and remained therein continuously until the first day of December, 1943 without change or modification of said contract or the conditions of his employment or compensation as provided in said contract.’ The duties of appellee are then averred.

It is then averred that appellee left appellants' employ on December 1, 1943, and immediately entered in the general insurance business in Richmond, Wayne County, Indiana, and has continuously since engaged in such business. That thereby he violated and continues to violate the negative covenant contained in the written contract, to the irreparable injury of the appellants.

The written contract (Exhibit ‘A’) made a part of the complaint, as the foundation of the action, omitting signatures is as follows:

‘This Agreement made by and between Atwood L. Jenkins and Alfred Will Jenkins, doing business as Jenkins Bros. in the City of Richmond, Indiana, hereinafter referred to as First Parties, and Lowell M. King of Indianapolis, Indiana, hereinafter referred to as Second Party:--

‘Witnesseth: That said Second Party hereby agrees to associate himself with said First Parties exclusively for a period of two years, commencing January 1, 1940. Said First Parties own and are engaged in the business of operating a general insurance agency in said City of Richmond, and in such business and the office thereof, said Second Party shall perform such duties in connection with selling insurance, adjusting claims, delivering policies, collecting premiums, and like services as shall be done to the best interest of said First Parties.

‘Said Second Party agrees to give all his working time to the duties hereunder, and to conform to the rules, regulations and practices of said First Parties, and during his association, or thereafter, he

[65 N.E.2d 123]

shall not disclose to others any fact concerning the business of said First Parties.

‘As a part of the consideration of his employment the said Second Party agrees that in case he should leave the services of said First Parties, he will not, for a period of five years thereafter, engage directly or indirectly on his own account, or in connection with others, in the business of soliciting or writing insurance of any kind in Wayne County, Indiana.

‘As remuneration for the services of said Second Party as above set out, said First Parties agree to pay to said Second Party the sum of Two Thousand Five Hundred Dollars ($2500.00) per annum, payable in twelve equal monthly payments during the two year period of this agreement, at the end of which period a new agreement shall be made by the parties hereto.

‘It is further understood and agreed that should either or both of the parties, consistuting the First Parties of this contract, desire to dispose of their interests in the said Jenkins Bros. Agency, either in whole or in part, the party of the Second Part shall have the first option to purchase at lease one-half of that portion of the agency that is being offered for sale.

‘It being understood, however, that the above does not apply to the entry into the business, of either or both, of the sons of the First Parties hereto.

‘It is further understood and agreed that this contract may be modified at any time upon the mutual agreement of all parties hereto.

‘Witness our hands this 22nd day of November, 1939.’

A contract of employment containing a negative covenant that is in restraint of trade is not favored in law, but may be enforced in equity for the purpose of protecting the employer's trade secrets. An employer may bind an employee lawfully, by contract, not to divulge knowledge secured from his employment under the contract to a competitor, or to use such knowledge in a business of his own in competition with his employer, for a reasonable time after the termination of the employment contract. 36 Am.Jur., Monopolies, Combinations, etc., § 78, p. 554. Grand Union Tea Company v. Walker, 1935, 208 Ind. 245, 195 N.E. 277, 98 A.L.R. 958;Harrison v. Glucose Sugar Refining Company, 7 Cir., 1902, 116 F. 304, 58 L.R.A. 915;Clark Paper & Mfg. Co. v. Stenacher, 1919, 108 Misc. 399, 177 N.Y.S. 614, affirmed 193 App.Div. 924, 184 N.Y.S. 914; Annotation, 20 A.L.R. 864;Sherman v. Pfefferkorn, 1922, 241 Mass. 468, 135 N.E. 568.

The serious question presented in this...

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48 practice notes
  • Brown's Estate, In re, No. 968A148
    • United States
    • November 5, 1969
    ...That which is plain and manifests needs no interpretation. Ross v. Clore (1948) 225 Ind. 597, 599, 76 N.E.2d 839; Jenkins v. King (1946) 224 Ind. 164, 170, 171, 174, 65 N.E.2d 121, 163 A.L.R. 397. A will expressed in clear and precise terms, manifesting the testator's intention and leading ......
  • McEntire v. Indiana Nat. Bank, No. 4-783A219
    • United States
    • Indiana Court of Appeals of Indiana
    • December 19, 1984
    ...of agreements, and that intention is expressed by the clear language of the contract. See, e.g., Jenkins v. King, (1946) Page 1222 224 Ind. 164, 65 N.E.2d 121; Citizens Bank & Trust Co. of Washington v. Gibson, (1984) Ind.App., 463 N.E.2d 276 trans. pending; R.R. Donnelley & Sons, Co. v. He......
  • Harvest Ins. Agency, Inc. v. Inter-Ocean Ins. Co., INTER-OCEAN
    • United States
    • Indiana Court of Appeals of Indiana
    • May 22, 1985
    ...we may not engage in judicial construction by looking at the entire contract unless the covenant is ambiguous. See Jenkins v. King (1946), 224 Ind. 164, 65 N.E.2d 121; Piskorowski v. Shell Oil Co., supra. By defining the simple words used in this covenant, we do not believe reasonable men w......
  • Lafayette Beverage Distributors v. Anheuser-Busch, No. L 82-52.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • August 25, 1982
    ...Inc. v. Barger, Ind.App., 428 N.E.2d 65 (1981); Piskorowski v. Shell Oil Co., Ind.App., 403 N.E.2d 838 (1980); Jenkins v. King, 224 Ind. 164, 171, 65 N.E.2d 121, 123 (1946); see, Bellew v. Byers, Ind., 396 N.E.2d 335, 337 (1979). Further ambiguity is not established by the mere fact the par......
  • Request a trial to view additional results
50 cases
  • Brown's Estate, In re, No. 968A148
    • United States
    • November 5, 1969
    ...That which is plain and manifests needs no interpretation. Ross v. Clore (1948) 225 Ind. 597, 599, 76 N.E.2d 839; Jenkins v. King (1946) 224 Ind. 164, 170, 171, 174, 65 N.E.2d 121, 163 A.L.R. 397. A will expressed in clear and precise terms, manifesting the testator's intention and leading ......
  • McEntire v. Indiana Nat. Bank, No. 4-783A219
    • United States
    • Indiana Court of Appeals of Indiana
    • December 19, 1984
    ...of agreements, and that intention is expressed by the clear language of the contract. See, e.g., Jenkins v. King, (1946) Page 1222 224 Ind. 164, 65 N.E.2d 121; Citizens Bank & Trust Co. of Washington v. Gibson, (1984) Ind.App., 463 N.E.2d 276 trans. pending; R.R. Donnelley & Sons, Co. v. He......
  • Harvest Ins. Agency, Inc. v. Inter-Ocean Ins. Co., INTER-OCEAN
    • United States
    • Indiana Court of Appeals of Indiana
    • May 22, 1985
    ...we may not engage in judicial construction by looking at the entire contract unless the covenant is ambiguous. See Jenkins v. King (1946), 224 Ind. 164, 65 N.E.2d 121; Piskorowski v. Shell Oil Co., supra. By defining the simple words used in this covenant, we do not believe reasonable men w......
  • Lafayette Beverage Distributors v. Anheuser-Busch, No. L 82-52.
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • August 25, 1982
    ...Inc. v. Barger, Ind.App., 428 N.E.2d 65 (1981); Piskorowski v. Shell Oil Co., Ind.App., 403 N.E.2d 838 (1980); Jenkins v. King, 224 Ind. 164, 171, 65 N.E.2d 121, 123 (1946); see, Bellew v. Byers, Ind., 396 N.E.2d 335, 337 (1979). Further ambiguity is not established by the mere fact the par......
  • Request a trial to view additional results

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