Levesque v. Pelletier.
| Decision Date | 04 August 1949 |
| Citation | 68 A.2d 9 |
| Parties | LEVESQUE v. PELLETIER. |
| Court | Maine Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Supreme Judicial Court, Aroostook County, in Equity.
Suit in equity by Sadie R. Levesque against Antoine B. Pelletier for an accounting, for restoration of a business to plaintiff, and for an injunction to restrain defendant from doing business with plaintiff's alleged customers. From an adverse decree, plaintiff appeals.
Appeal dismissed, and decree affirmed.
F. Harold Dubord, Waterville, William H. Niehoff, Waterville, for plaintiff.
Harry C. McManus, Van Buren, for defendant.
Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.
This cause in equity is before the Law Court from Aroostook County on plaintiff's appeal from the decree of the sitting justice dismissing without prejudice the plaintiff's bill.
The record shows that in the year 1935 Albenie Roy, the former husband of the plaintiff, commenced a business of selling Tingleys Bread, Berwick Cakes, bleach water, and other goods, to stores and homes in that part of northern Aroostook County commonly called the St. John River Valley. Mr. Roy carried on this business until his death in 1944. The defendant, Antoine Pelletier, was for a time a competitor of Albenie Roy in the same line of business, and later had been employed by Albenie Roy in the delivery of breads and pastries. The defendant Pelletier was engaged by the plaintiff after her husband's death in 1944 ‘to manage the business just as if it had been his own’ for the sum of forty dollars per week. At the end of three months Pelletier asked for an increase of wages and his pay was increased by the plaintiff to fifty dollars. In February 1945, the plaintiff says, she offered ‘him to be on commission and we agreed I would pay him five per cent of the products he would sell-bread and pastries, and five cents a gallon for every gallon of bleach water.’ Later, in October 1945 the defendant desired to purchase the business, and as a result an agreement was made in writing whereby Sadie Roy Levesque ‘leased’ to Antoine B. Pelletier ‘all her bread and pastry business' for which Antoine B. Pelletier agreed to pay fifty dollars per week from October 29, 1945 ‘until the death of said Sadie Roy Levesque, or until the death of said Antoine B. Pelletier.’ Pelletier was to make his $50.00 weekly payments every Monday, and it was also agreed that the ‘bread and pastry business will revert back to said Sadie Roy Levesque’ on the death of Pelletier or on thirty day notice by Pelletier The plaintiff in the agreement further reserved ‘the privilege to retake said bread and pastry business at any time upon giving a thirty day written notice’ to Pelletier. Failure to make weekly payments for two weeks waived the written notice. The notice was also to be considered waived if ‘bread and pastry business bills were not paid by Pelletier when due, and the business shall immediately revert back to said Sadie Roy Levesque.’ The plaintiff was given the right to examine the books of the business when she desired.
On May 10, 1946 the defendant, Pelletier, gave written notice to the plaintiff of his intention ‘to return the business to the plaintiff.’ His last weekly payment to the plaintiff was on June 20, 1946. The defendant, however, did not ‘return’ the business to the plaintiff, but continued to carry on as before in selling the same products to the same customers and has since made no payments to plaintiff. After the notice by the defendant that he intended to return the business, there was some talk between the plaintiff and defendant relative to a purchase of the business by the defendant for $2500.00, but no sale was made and the defendant continued as before. Previously, the plaintiff had sold to defendant a truck, and the other equipment that she owned and that he had used in deliveries, so that so far as physical assets were concerned there was nothing to ‘return.’
The plaintiff's bill in equity brought June 2, 1948, set out the facts and asked for a decree that the ‘defendant is holding and operating the aforesaid business in trust for the benefit of the complainant.’ She asked that an accounting be had; that the business be restored to her, and that an injunction issue to restrain the defendant Pelletier ‘from doing business with the customers of said plaintiff and with the firms and persons listed in paragraph one of this bill.’
The record and briefs indicate that the request for an accounting was not pressed by the plaintiff, but she did urge fraud, deceit, a trust relationship, that the business be ‘returned,’ and that injunction issue.
After full hearing, the sitting justice did not apparently find convincing evidence to establish the material allegations of the plaintiff's complaint in regard to a relationship of...
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