Mallinckrodt Chemical Works v. Nemnich

CourtUnited States State Supreme Court of Missouri
Writing for the CourtSherwood
Citation169 Mo. 388,69 S.W. 355
PartiesMALLINCKRODT CHEMICAL WORKS v. NEMNICH.
Decision Date18 June 1902
69 S.W. 355
169 Mo. 388
MALLINCKRODT CHEMICAL WORKS
v.
NEMNICH.
Supreme Court of Missouri, Division No. 2.
June 18, 1902.

CONTRACTS — RESTRAINT OF TRADE — VIOLATION — INJUNCTION — PLEADING.

1. Where a demurrer to a petition is sustained, and judgment entered thereon, a bill of exceptions for the purpose of preserving the demurrer is unnecessary.

2. In a suit to restrain the violation of a contract by a former employé of plaintiff that for six years after leaving its employ he would not, within the United States, engage in selling, dealing in, or manufacturing any of the articles manufactured, dealt in, or sold by it, a petition alleging that defendant within such time "entered upon, and is engaged in, the manufacture and sale of chemicals, drugs, and other articles of the same kind and character as those manufactured, sold, and dealt in by the plaintiff," and "that such acts on defendant's part are a breach of the obligation imposed by his agreement aforesaid," and "that in so doing he utilizes the information as to processes and customers acquired while in plaintiff's employ," states merely the legal conclusions of the pleader, and is demurrable.

3. Such contract is one in restraint of trade, which equity will not enforce by injunction.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Injunction by the Mallinckrodt Chemical Works against Rudolph Nemnich. From a judgment for defendant, plaintiff appealed to the St. Louis court of appeals, where the judgment was affirmed (83 Mo. App. 6), and on the dissent of one of the judges the case was transferred to the supreme court. Affirmed.

McKeighan & Watts and Shepard Barclay, for appellant. Lubke & Muench, for respondent.

SHERWOOD, P. J.


This proceeding (one in equity) sought to enjoin defendant from carrying on the manufacture of chemicals, drugs, etc., in the states of Missouri and Illinois. The petition and accompanying contract are as follows:

"The Mallinckrodt Chemical Works, as plaintiff, by the undersigned, its attorneys, states that it is a corporation under the laws of Missouri. Plaintiff for more than ten years last past has been, and it is now, engaged in the manufacture and sale of drugs and chemicals, and it has its principal office and manufactory in the city of St. Louis. The business of plaintiff is extensive. At and for some years prior to the time when plaintiff made the contract with defendant hereinafter mentioned, the commercial operations of the plaintiff included numerous transactions for the sale of its manufactured drugs and chemicals, not only with persons in the city of St. Louis, but also in very many other parts of the United States of America, in a large number of the different states and territories thereof, and in the dominion of Canada, in the republic of Mexico, and in several of the countries of Europe and of Asia and of Australia. Plaintiff's business of selling drugs and chemicals is still as extensive as when said contract was made, and is enlarging in extent each year. Plaintiff's business of manufacturing drugs and chemicals is, moreover, to a great degree, scientific in its nature. It requires a large measure of skill in the adoption and use of various processes for the manufacture of the drugs and chemicals sold by plaintiff as aforesaid, and many of the processes followed by its employés in the plaintiff's said manufactory are the products of discoveries, inventions, and improvements by the officers and employés of plaintiff, belonging to the plaintiff, and constitute valuable property of plaintiff. The defendant, Rudolph Nemnich, and said corporation, June 15, 1893, entered into a contract, which was signed by both parties, in the following terms:

"`These articles of agreement, entered into this 15th day of June, 1893, by and between the Mallinckrodt Chemical Works, a corporation, of the one part, and Rudolph Nemnich, of the other part, witnesseth, that they, the said parties, for the considerations and the mutual covenants hereinafter mentioned, agree and covenant to and with each other in manner following, to wit:

"`First. That the said corporation will, for and during the space of five years, to commence on the first day of January, 1893, employ said Rudolph Nemnich as chemist in its factories, and to do such other services therein as he will be directed to do by the officers of said corporation, and that said Rudolph Nemnich shall and will during said

69 S.W. 356

term diligently and faithfully serve in the employ of said corporation as such chemist, or as directed to do by its officers, and that he will devote all his time, skill, and industry to the business of said corporation.

"`Second. That said Rudolph Nemnich shall at all times during said term fulfill and keep the lawful and reasonable commands and directions of said corporation and its officers, and that said Rudolph Nemnich shall neither during said term nor at any time afterwards disclose the same, or the secrets of his employment, or any of the processes, plans, operations, business dealings, or transactions of said corporation, to any person or persons whatsoever.

"`Third. That all the discoveries, inventions, and improvements which said Rudolph Nemnich during said term may use, apply, or make in any chemicals, pharmaceutical preparations, medicines, compounds, machinery, apparatus, or articles of any kind whatsoever, or in the several processes of manufacturing or compounding the same, whether they are patentable or unpatentable, shall become, be, and remain the property of said corporation; and said Rudolph Nemnich hereby and herewith sells, assigns, and transfers to said corporation the full and exclusive right to use and apply the same; said corporation to have the full and exclusive right to obtain and take out letters patent thereon.

"`Fourth. That as and for a consideration for such services to be done, observed, and performed by said Rudolph Nemnich as aforesaid, and as his annual salary therefor, said corporation will pay him the sum of one thousand dollars, together with an increase in his salary of two hundred dollars for each successive year during said term, over the preceding year.

"`Fifth. That if said Rudolph Nemnich shall be absent from his said employment, by reason of sickness, disability, or other causes, for periods exceeding three weeks at a time, the said corporation shall be at liberty to make deductions from his annual salary in proportion to his time of absence.

"`Sixth. That he, the said Rudolph Nemnich, agrees and covenants and herewith binds himself that for and within the period of six years after he has left the service of said corporation, and within the territory of the United States, he, the said Rudolph Nemnich, will not, in any manner or form, directly or indirectly, either by himself or with others, engage in the selling, dealing, or manufacture of any of the articles now or then being manufactured, sold, or dealt in by said Mallinckrodt Chemical Works.

"`Seventh. That said Rudolph Nemnich shall at no time, whether during said term of employment or afterwards, directly or indirectly, with and by himself, or with and to any other person, firm, or corporation, utilize, impart, or apply the knowledge or information acquired by him...

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58 practice notes
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...59 S.W. (2d) 771; Steinberg v. Bank, 324 Mo. 297, 67 S.W. (2d) 63; Doerner v. St. L. Crematory, 80 S.W. (2d) 721; Mallinckrodt v. Nemnich, 169 Mo. 388, 69 S.W. 355; Pier v. Heinrichoffen, 52 Mo. 333; Walrath v. Crary, 222 S.W. 895; Ederlin v. Judge, 36 Mo. 350; King v. City of Rolla, 130 S.......
  • Wilhoit v. City of Springfield, No. 6370.
    • United States
    • Court of Appeal of Missouri (US)
    • May 3, 1943
    ...Swentzel v. Holmes, 175 S.W. 871; Sidway v. Mo. Land & Live-Stock Co., 163 Mo. 342, 63 S.W. 705; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388, 69 S.W. 355; Gibson v. Chicago Great Western Ry. Co., 225 Mo. 473, 125 S.W. 453; Hand v. City of St. Louis, 158 Mo. 204, 59 S.W. 92; Walrath ......
  • State ex rel. Brancato v. Trimble, No. 29147.
    • United States
    • United States State Supreme Court of Missouri
    • March 27, 1929
    ...Hirsch Rolling Mills, 285 Mo. 669; Bailey v. Kansas City, 189 Mo. 503; Zasemowich v. Company (Mo.), 213 S.W. 799; Mallinckrodt v. Nemnich, 169 Mo. 388. Jacobs & Henderson and Thomas E. Deacy for (1) The opinion of the Court of Appeals is not contrary to the last and controlling opinions of ......
  • Welch v. Thompson, No. 40373.
    • United States
    • Missouri Supreme Court
    • March 8, 1948
    ...v. St. Louis, 197 S.W. (2d) 621; Kramer v. Kansas City P. & L. Co., 311 Mo. 369, 279 S.W. 43; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388; James v. Bailey Reynolds Chandelier Co., 325 Mo. 1054, 30 S.W. (2d) 118; Thompson v. Farmers Exchange Bank, 333 Mo. 437, 62 S.W. (2d) 803. (2) T......
  • Request a trial to view additional results
43 cases
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...59 S.W. (2d) 771; Steinberg v. Bank, 324 Mo. 297, 67 S.W. (2d) 63; Doerner v. St. L. Crematory, 80 S.W. (2d) 721; Mallinckrodt v. Nemnich, 169 Mo. 388, 69 S.W. 355; Pier v. Heinrichoffen, 52 Mo. 333; Walrath v. Crary, 222 S.W. 895; Ederlin v. Judge, 36 Mo. 350; King v. City of Rolla, 130 S.......
  • Wilhoit v. City of Springfield, No. 6370.
    • United States
    • Court of Appeal of Missouri (US)
    • May 3, 1943
    ...v. Holmes, 175 S.W. 871; Sidway v. Mo. Land & Live-Stock Co., 163 Mo. 342, 63 S.W. 705; Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388, 69 S.W. 355; Gibson v. Chicago Great Western Ry. Co., 225 Mo. 473, 125 S.W. 453; Hand v. City of St. Louis, 158 Mo. 204, 59 S.W. 92; Walrath v. Cr......
  • State ex rel. Brancato v. Trimble, No. 29147.
    • United States
    • United States State Supreme Court of Missouri
    • March 27, 1929
    ...Hirsch Rolling Mills, 285 Mo. 669; Bailey v. Kansas City, 189 Mo. 503; Zasemowich v. Company (Mo.), 213 S.W. 799; Mallinckrodt v. Nemnich, 169 Mo. 388. Jacobs & Henderson and Thomas E. Deacy for (1) The opinion of the Court of Appeals is not contrary to the last and controlling opinions......
  • State v. Ellison, No. 20073.
    • United States
    • United States State Supreme Court of Missouri
    • July 2, 1917
    ...the validity of the petition is in conflict with Gibson v. Railroad, 225 Mo. 473, 125 S. W. 453, Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388, 69 S. W. 355, and Nichols v. Stevens, 123 Mo. 117, 25 S. W. 578, 27 S. W. 613, 45 Am. St. Rep. 514. It cannot properly be said that a petitio......
  • Request a trial to view additional results

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