Lawson v. Edwards

• Decision Date: 07 April 1927
• Docket Number: Mo. 4150.
• Citation: 293 S.W. 794
• Parties: LAWSON v. EDWARDS.
• Court: Missouri Court of Appeals

293 S.W. 794

LAWSON v. EDWARDS.

Mo. 4150.

Springfield Court of Appeals. Missouri.

April 7, 1927.

Appeal from Circuit Court, Pemiscot County; Henry O. Riley, Judge.

Action by Albert Lawson against John S. Edwards. Judgment for defendant, and plaintiff appeals. Affirmed.

Ward & Reeves, of Caruthersville, for appellant.

McKay & Peal, of Caruthersville, for respondent.

BRADLEY, J.

This action was brought for relief by injunction. The relief sought was denied and plaintiff appealed.

The petition alleges that prior to December 31, 1921, defendant and C. D. Richardson owned and operated the Guernsey dairy in the city of Caruthersville, Pemiscot county, Mo., and had established a large business; that on December 31, 1921, defendant sold and delivered to plaintiff a one-half undivided interest in said dairy, and "as a material part of said sale the said defendant agreed with plaintiff not to engage in the dairy business in Pemiscot county, Mo., so long as plaintiff should continue in said business in said county." It is further alleged that at the time said sale was made a certain bill of sale was executed by defendant. This bill of sale is set out in full in the petition and contains, among other provisions, this paragraph:

"As a material part of the consideration for this sale and transfer of the above-described property, the grantor, John S. Edwards, agrees with the grantee herein not to engage in the dairy business in Pemiscot county, Mo., so long as the said Lawson may continue in said business in said county."

Plaintiff further alleges that after he purchased the one-half interest from defendant he acquired the remaining interest, and at the time of filing the petition he was the sole owner of said dairy. Plaintiff further alleges that on the ___ day of ___, 1925, defendant, in violation of his agreement not to again engage in the dairy business in Pemiscot county so long as plaintiff was there engaged in said business, established a general dairy business in the city of Caruthersvile in said county. The prayer is for injunctive relief.

The answer admits the sale and the execution of the bill of sale containing the provision set out above. Further answering, defendant avers that, after plaintiff purchased the one-half interest, he (defendant), with plaintiff's knowledge and consent, purchased from Richardson an undivided onefourth interest, and for a time operated the dairy as a partner with plaintiff, and that thereafter defendant sold to plaintiff his onefourth interest acquired from Richardson; that thereafter plaintiff suggested that defendant buy some cows and engage in the dairy business, stating that he (plaintiff) was not able to supply the demand for milk in the city of earuthersville; that, relying, upon this suggestion and advice, defendant purchased some cows and has since been selling milk in said city; and that, by reason of the facts pleaded in the answer, plaintiff is estopped from invoking the prohibitive clause in the bill of sale.

Plaintiff introduced the bill of sale containing the prohibitive provision, made proof that defendant was then conducting a dairy business in Caruthersville, and rested.

Prior to the time defendant sold the onehalf interest to plaintiff, he (defendant) became obligated on certain paper executed for the dairy company. In the latter part of January, 1922, when Richardson and defendant were adjusting their partnership obligations, Richardson expressed a desire to sell to defendant a one-fourth interest in the dairy. Defendant testified that, before he closed any deal with Richardson, he consulted plaintiff, called his attention to the prohibitive clause in the bill of sale, and that plaintiff said:

"That's all right; I rather have you than Richardson. I see we are not going to get along, and, if you buy back, that will give me three-fourths or controlling interest."

Defendant retained the one-fourth interest purchased from Richardson until about August 1, 1922, when he sold said interest to plaintiff.

Defendant testified that in the fall of 1922, after he sold to plaintiff the one-fourth interest, plaintiff lost some customers and came to defendant and "wanted me to get some cows" and get the lost customers and then turn the customers over to plaintiff; that he (plaintiff) would rather have defendant "in a light way than one some one else big." At that time defendant had only one cow, but after the conversation he bought three more cows, and began a dairy business on a small scale, and sold to plaintiff from two to eight gallons of milk per day. Defendant further testified that up to the time plaintiff suggested that he buy the cows he had no intention of getting into the dairy business; that plaintiff suggested buying the cows two or three times; and that he bought them "on the strength of his suggestion. He said what he didn't use I could sell to some customers that he couldn't get." Defendant added to his herd until he had eight cows, and continued to sell to plaintiff, as well as others, until November, 1925. According to defendant, plaintiff made no complaint about defendant's dairy business until he (plaintiff) became dissatisfied about the prices defendant charged for his milk. Defendant testified that he was not running a dairy business in competition with...