McCluer v. Super Maid Cook-Ware Corporation, No. 551.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: LEWIS, COTTERAL, and PHILLIPS, Circuit
• Citation: 62 F.2d 426
• Parties: McCLUER v. SUPER MAID COOK-WARE CORPORATION.
• Docket Number: No. 551.
• Decision Date: 23 December 1932

62 F.2d 426 (1932)

McCLUER
v.
SUPER MAID COOK-WARE CORPORATION.*

No. 551.

Circuit Court of Appeals, Tenth Circuit.

December 23, 1932.

62 F.2d 427

A. L. Quant, of Kansas City, Mo. (Maurice H. Winger, Leland Hazard, and Joseph T. Owens, all of Kansas City, Mo., on the brief), for appellant.

Samuel J. Andalman, of Chicago, Ill. (Harkless & Histed and Elmer B. Silvers, all of Kansas City, Mo., on the brief), for appellee.

Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.

LEWIS, Circuit Judge.

This appeal presents for our consideration the action of the District Court in overruling appellant's demurrer to the bill and entry of final decree thereon, appellant having declined to answer. The Super Maid Cook-Ware Corporation, plaintiff below, an Illinois corporation, and Miller Maid Cook-ware Company, a Kansas corporation, were engaged in selling aluminum ware suitable for use as cooking utensils directly to housewives. The gravamen of the bill is that the latter company induced representatives of the former to break their written contracts with appellee and accept immediate employment with appellant in the sale and distribution of its aluminum ware in violation of restrictive covenants in said agreement, of which appellant had knowledge. There are two restrictions, (1) That the person contracting with plaintiff would not for one year after the termination of the contract, for himself or anyone else, sell or solicit the purchase of aluminum cookware in any city or community in which he had operated under the contract with plaintiff nor within a radius of one hundred miles of such city or community; and (2) That he would not within said one year engage in the business of selling such ware directly to the consumer within the United States.

The decree enjoined appellant from violating the terms of the first restriction and further that it should not continue in its employ two named persons whom the bill alleged had been induced by appellant to quit as appellee's representatives and become engaged by appellant in the sale and distribution of its aluminum ware.

The contract (labeled "Representative's Rental Agreement") is so indefinite in statement and so unusual in form and substance as to leave doubt as to the real relation of the parties. Throughout appellee is spoken of as "lessor" and the other party to the contract as "lessee." There are intimations that appellee manufactures its ware and that lessees might learn the secrets of that art, but this is contrary to the allegations of the bill. The contract begins with the statement that in consideration that lessee will keep and perform the agreement the lessor leases to the lessee one complete aluminum outfit consisting of named articles. It provides that lessee shall pay as rental five dollars per month for twenty-four months. It seems clear that the purpose of leasing the aluminum outfit was to enable the lessee to make demonstrations of its use in cooking, but that is nowhere expressly stated. The contract provides that the "lessor shall not be liable for any damage occasioned by the said lessee in and about the use of said outfit or any part thereof or any demonstration made by said lessee, and it being understood and agreed that the said lessee is acting for and on his own behalf in all matter pertaining to the use thereof or any part thereof or any demonstration made with the same or any part thereof." It further provides that if the lessee will faithfully "carry out the orders and directions of the lessor from time to time as indicated by its various rules and regulations, then for the time spent by lessee in school run by lessor in learning the art of selling aluminum cook-ware, the lessor will pay to the lessee the sum of $35.00 as, if and when the lessee subsequently shall have secured $1,000.00 in bona fide contracts for Super Maid aluminum ware which have been accepted by the said lessor, said sum to be paid directly from the home office of lessor. Besides this, for all bona fide contracts secured by lessee for the purchase of lessor's aluminum ware (and which contracts are accepted by lessor), the lessor will pay to the lessee a sum equal to the rate published by the said lessor from time to time." The lessee agreed to immediately surrender the outfit whenever he should cease selling aluminum ware made by lessor or whenever requested to so surrender the same by the lessor, and if he failed to surrender the same, it was agreed that lessee should be liable to lessor at the rate of $5.00 per day as liquidated damages. The lessee further agreed that when he stopped selling lessor's ware an action of trover for the aluminum outfit would lie against him whether demand was made for it or not. The lessee further agreed to insure the safe return of the outfit and every part thereof and that he would be held to strict liability for its value; that in the event lessee made default in payments reserved it would be lawful for the lessor to declare the lease ended and to demand and receive back the aluminum outfit, and for the purpose of its recovery the lessee constituted any

62 F.2d 428

attorney of any court of record as his attorney with authority to enter the lessee's appearance, to waive process and service, trial by jury and to confess judgment against the lessee in favor of the lessor in any court upon complaint filed therein by lessor...