Loutzenhiser v. Peck

• Citation: 89 Wash. 435,154 P. 814
• Decision Date: 28 January 1916
• Docket Number: 12926.
• Court: Washington Supreme Court
• Parties: LOUTZENHISER v. PECK et al.

154 P. 814

89 Wash. 435

LOUTZENHISER v. PECK et al.

No. 12926.

Supreme Court of Washington

January 28, 1916

Department 1. Appeal from Superior Court, Spokane County; Bruce Blake Judge.

Action by H. F. Loutzenhiser against Hugh Peck and another. Decree enjoining defendants from engaging in business in violation of their contract, and awarding damages to plaintiff, and defendants appeal. Remanded, with directions to modify the decree.

Carl W. Swanson, of Spokane, for appellants.

Donald F. Kizer, of Spokane, for respondent.

ELLIS J.

Action to enjoin the violation of a covenant not to engage in a certain business for a limited time in a limited locality and for damages. It is conceded that prior to July 1, 1913 both the plaintiff and the defendant Hugh Peck were engaged in the retail meat business on Monroe street at Nos. 02717 and 02721, respectively, in the city of Spokane; that on that date Hugh Peck sold his stock, tools, and fixtures to the plaintiff, and executed a bill of sale thereof containing a covenant as follows:

'Party of the first part hereto hereby agrees not to engage in the retail meat business as owner, manager or clerk within one mile of New York Market at 02721 Monroe street Spokane, Spokane county, Washington, for not less than two years.'

It is conceded that the defendant Hugh Peck prior to the sale had been supporting his family from the business so sold. The defendant Katherine Peck avers in her answer that about January 1, 1914, her husband conveyed to her by bill of sale certain fixtures, tools, and implements for running a meat market at 02721 Monroe street; that the conveyance to her was a gift from her husband, the defendant Hugh Peck; that the property was thereafter her separate property, and that since that time she has been conducting, either personally or through a renter, a retail meat market at that place. The defendant husband testified that he purchased the fixtures and equipped the new market with his separate funds and gave it to his wife. The evidence further shows that he purchased the market sold to the plaintiff with funds acquired prior to his marriage.

The court made findings of fact and conclusions of law in favor of the plaintiff, and thereon entered a decree enjoining the defendants and each of them from engaging in the retail meat business within one mile of 02721 Monroe street in Spokane for a period of two years from July 1, 1913, and awarding the plaintiff judgment against the defendants and each of them for the sum of $350 and costs. The defendants have appealed.

The appellants' first claim is that the covenant was invalid in that it was without limitation as to when the two years should begin or cease. Construing the contract as a whole, the covenant is not even ambiguous. No one reading the contract could have a doubt as to what was meant. It shows an intention by clear implication not to engage in the specified business within the specified limits within the period of at least two years from the date of the contract. The intention of the parties as expressed or reasonably implied in a written contract must prevail.

The appellants next complain that both the injunction and the judgment, if any, should have been against the defendant husband alone because the sale in connection with which the covenant was made was a sale of his separate property. Though the property sold was the property of the husband, it is conceded that it was being used in support of the community. This fact furnished a sufficient consideration for an undertaking binding upon the community not to enter into the same business at least upon the same capital for a limited time in the same locality. Stating it in another way, the husband could not avoid the covenant, even conceding it his separate covenant, by turning his property over to his wife as a gift and setting her up in the same business at the same place. To permit him to do so would be to sanction the use of his own property in fraud of the respondent's rights and in palpable evasion of his own covenant. Looking through technicalities to essentials that is the ultimate end of appellants' position. It is unsound. The court committed no error on the admitted facts in running the injunction against the appellant Hugh Peck and the community. It is equally clear that under the evidence there is no error in enjoining the wife also. She was aiding the husband in violating his covenant. A different case would be presented if there had been any evidence that she invested in the the new venture money from any other source than the alleged gift from her husband. On such a case we express no opinion.

It is asserted that the complaint was insufficient to sustain any judgment for damages in that it contained no allegation of any specific amount of damages suffered as required by Rem. & Bal. Code, § 258, subd. 3, the last clause of which reads:

'If the recovery of money or damages be demanded, the amount thereof shall be stated.'

The claim is untenable. In the complaint it is alleged in substance that the ultimate damages cannot be estimated, and the prayer is for an injunction, and that the damages already suffered be ascertained and allowed and for such other relief as may be consistent with equity and good conscience. All the facts from which the damages flowed were pleaded. The appellants were advised of the exact nature of the recovery sought. No demurrer was interposed nor any motion to make the complaint more specific. On tardy objection every intendment will be indulged in favor of the pleading. Substantial justice is the criterion imposed by statute. Rem. & Bal. Code, §§ 285, 307.

This is specially true where, as here, the action is one of equitable cognizance. In such a...