Love v. Miami Laundry Co.

• Decision Date: 05 May 1934
• Citation: 160 So. 32,118 Fla. 137
• Parties: LOVE et al. v. MIAMI LAUNDRY CO.
• Court: Florida Supreme Court

160 So. 32

118 Fla. 137

LOVE et al. v. MIAMI LAUNDRY CO.

Florida Supreme Court, Division B.

May 5, 1934

On Rehearing Jan. 15, 1935.

Suit by the Miami Laundry Company against E. H. Love and others. From an order granting injunctive relief, defendants appeal.

Reversed and cause remanded, with directions.

BROWN J., dissenting in part.

On Rehearing. Appeal from Circuit Court, Dade County; Uly O. Thompson, judge.

COUNSEL

Arthur S. Friedman and Walter D. Payne, both of Miami, for appellants.

Curry &amp Ward, of Miami, for appellee.

Evans, Mershon & Sawyer, herbert S. Sawyer, and O. W. Mehrtens, all of Miami, amici curiae.

OPINION

BUFORD, Justice.

Appellee exhibited its bill of complaint in the circuit court for Dade county seeking to enjoin appellants from engaging in the service of driving laundry trucks belonging to competitors of the complainant over certain routes in the city of Miami and Dade county, Fla.

The complainant claimed a right to the relief prayed under the terms of certain contracts theretofore entered into between the complainant and each of the defendants. The contracts were separate as to each defendant, but were of like tenor and effect. Under the terms of the contract each of the defendants was employed as a driver of a laundry truck operated for and in behalf of the business of the complainant. The pertinent parts of the contracts under which relief is prayed are contained in the fifth and sixth paragraphs thereof, which are as follows:

'Fifty: Said Company may terminate the employment of said Driver for good and sufficient cause and shall have the right to terminate the employment of said Driver by giving to said Driver one week's notice of the termination thereof or by paying to said Driver such compensation as he would earn in one week's employment; but in no case to exceed Twenty-five Dollars ($25.00). Said Driver may terminate his employment with said Company only by giving to said Company one week's notice in writing, addressed to the party of the first part, of his intentions to quit his employ. Upon any termination of said employment said Driver shall immediately turn over and surrender to said Company all money in his possession belonging to said Company, and shall immediately surrender and give up all books, papers and memoranda pertaining to said Company or its business or its customers, patrons, or agents. Sixth: Said Driver agrees that he will not at any time, while in the employ of said company, either directly or indirectly divulge or make known to any person, whatever, the names or addresses of customers of said Company, who were customers, patrons or agents of said Company, at the time he entered the employ of said Company. That for one year immediately after his discharge by said Company or his quitting the employment of said Company, he will not either directly or indirectly, make known or divulge the names or addresses of any of the customers, patrons or agents of the said Company to any person whatsoever, and that for the space of one year after his discharge or quitting the employment of said Company, he will not either directly or indirectly, either for himself or any other person, firm, company or corporation, call upon, solicit, divert, take away or attempt to solicit, divert or take away any of the custom, business or patronage of such Company upon whom he called or whom he solicited, or to whom he catered or became acquainted with at the time of his employment with said Company or with whom he became acquainted or on whom he called or to whom he catered to after his employment with said Company.'

The contract with Love was executed on July 11, 1930; that with J. A. Curry was executed August 15, 1930; and that with T. C. Curry was executed on July 15, 1930.

The record shows that Miami Laundry Company was adjudicated a bankrupt on October 17, 1932; that a receiver in bankruptcy was appointed and thereafter, each of the defendants continued in the employ of the receiver in bankruptcy in the capacity of drivers of laundry trucks until the 13th day of January, 1933, when they resigned to take effect upon the discharge of the receiver in bankruptcy. The communication from the defendants to the receiver were in the following language:

'January 13, 1933.

'To: L. M. Gerstel and Jack Baldwin, Receivers of the Miami Laundry, Miami, Florida.

'Gentlemen: Herewith I tender my resignation as Laundry driver working under you as receiver, effective when you are discharged as said receiver and/or the business turned over to others to operate. If you would see that I am furnished with a release by which I am in no way obligated, I would be glad to continue for an additional week in service to break in a new driver.

'Very truly yours.'

The record shows that the employment by Miami Laundry Company terminated on January 21, 1933. $Motion to dismiss the bill of complaint was overruled. Testimony was taken and restraining order issued, whereupon appeal was entered and the order appealed from superseded.

The question for us to determine is whether or not a court of equity will grant injunctive relief against a breach of contract of this character. That the contract was made and executed for valuable consideration cannot be doubted; but the mere existence of a contract does not mean that in all cases the writ of injunction may be invoked to stop or prevent its breach.

In a case of this kind the public has a vital interest.

Here we have three men, able, ready, and willing to perform useful labor, and to thereby earn livelihoods for themselves and their families. They have each entered into a contract with an employer to perform certain services for that employer. The duration of the employment is not fixed by the contract, but either the employer or employee may terminate the contract and after its termination the employee is by the terms of the contract bound for a period of one year not to accept like employment from a competitor covering the territory and serving the customers which were covered and served for the contracting employer. The enforcement of this provision of the contract may, and in all probability will, mean that the contracting employee cannot procure other employment, and that he, together with his family, will become a charge on the public. It is not necessary that we hold the contract to be invalid as in contravention of subdivision 1 of section 5723, R. G. S., section 7948, C. G. L., but it is sufficient to say that equity should withhold injunctive relief which is sought for the purpose of coercing specific performance of such contract. After all, the granting of an injunction in such cases is equivalent to an order requiring specific performance of the contract. In a case of this sort, the contracting employer should be relegated to his suit at law for breach of the contract. See Nordenfelt Case, 6 Eng. Ruling Case, 413; Fredericks v. Mayer, 14 N.Y. Super. (1 Bosw.) 227; Allen Mfg. Co. v. Murphy, 23 Ont. Law Rep. 467; Menter Co. v. Brock et al., 147 Minn. 407, 108 N.W. 553, 20 A. L. R. 857; Johnston Co. v. Hunt, 66 Hun, 504, 21 N.Y.S. 314; Id., 142 N.Y. 621, 37 N.E. 564; Kaumagraph Co. v. Stampagraph Co., 197 A.D. 66, 188 N.Y.S. 678; Sternberg v. O'Brien, 48 N. J. Eq. 370, 22 A. 348, 9 A. L. R. 1458.

'That courts are reluctant to uphold contracts whereby an individual restricts his right to earn a living at his chosen calling is well established.' Simms v. Burnett, 55 Fla. 702, 46 So. 90, 16 L. R. A. (N. S.) 389, 127 Am. St. Rep. 201, 15 Ann. Cas. 690; Osius v. Hinchman, 150 Mich. 603, 114 N.W. 402, 16 L. R. A. (N. S.) 393; Carroll v. Giles, 30 S.C. 412, 9 S.E. 422, 4 L. R. A. 154; Mandeville v. Harman, 42 N. J. Eq. 185, 7 A. 37; Herreshoff v. Boutineau, 17 R.I. 3, 19 A. 712, 8 L. R. A. 469, 33 Am. St. Rep. 850.

For the reasons stated, the order appealed from should be reversed, and the cause remanded, with directions that the bill of complaint be dismissed. It is so ordered.

Reversed.

WHITFIELD, P.J., and BROWN, J., concur.

DAVIS, C.J., and ELLIS and TERRELL, JJ., concur in the opinion and judgment.

On Rehearing.

BUFORD Justice.

This case is before us after reargument after rehearing granted pursuant to filing of opinion on May 5, 1934.

The conclusion and judgment reached and pronounced is now adhered to.

As other reasons for reversing this case, we think the following are applicable:

A court of equity should not lend its power to enforce the provisions of an executory contract against one of the parties unless the terms and conditions of the contract are such that the court of equity might enforce at least a part of the terms thereof against the other party. In addition to the agreements quoted in the former opinion, the contract contained four other salient provisions, as follows:

'First: Said first party hereby agrees to and does hereby employ said party of the second part as a Driver (and in such other capacity as may thereafter be determined by said company) to call for and deliver unlaundered and laundered goods and dry cleaning and other merchandise handled by said company, and to make him acquainted with the customers, patrons and agents of said Company, upon whom said Driver should call.

'Second Said party of the second part agrees to call for and deliver unlaundered and laundered goods, dry cleaning and other merchandise handled by said Company, as he may be directed by said Company, and will account for all merchandise so coming into his hands by reason of this employment, and that he will perform such other and further duties as such Company shall require of him from time to time; that he will use all diligence in his power to make and keep trade for said Company and that he will faithfully work...