McKeighan Wachter Co. v. Swanson

• Decision Date: 15 April 1926
• Docket Number: 19665.
• Citation: 138 Wash. 682,245 P. 10
• Court: Washington Supreme Court
• Parties: McKELGHAN WACHTER CO. v. SWANSON.

245 P. 10

138 Wash. 682

McKELGHAN WACHTER CO. v. SWANSON.

No. 19665.

Supreme Court of Washington

April 15, 1926

Department 2.

Appeal from Superior Court, Skamania County; Simpson, Judge.

Action by the McKeighan Wachter Company against Peter Swanson. From a judgment of dismissal, plaintiff appeals. Affirmed.

Mackintosh J., dissenting.

Zent &amp Lovell, of Spokane, for appellant.

Miller Wilkinson & Miller, of Vancouver, for respondent.

MAIN J.

This action was begun to prevent the defendant from engaging in the garage business and for damages. The cause was tried to the court without a jury, and resulted in findings of fact conclusions of law, and a judgment denying any relief. From the judgment dismissing the action the plaintiff appeals.

For some years prior to October 1, 1923, the respondent had been engaged in the garage business in Stevenson, Skamania county in this state. On that date by written contract he sold the business which he was then conducting to the appellant. This agreement, so far as here material, provided that:

'Whereas, the party of the first part [respondent] has sold and delivered to the party of the second part [appellant] the business known as the Stevenson Garage, * * *

'It is further understood and agreed by and between the parties herein that good will is one of the items sold and said party of the first part promises and agrees that he will not reenter into the garage business or sales of automobiles in town of Stevenson, Skamania county, Washington, for the period of five years from the date hereof.'

Shortly after the appellant had taken over the business covered by this agreement the respondent erected another garage across the street. This by written contract dated June 10, 1924, he leased to Conrad A. Swanson, his son, and Arthur F. Long, a copartnership doing business under the name of the Sunset Auto Service Company. The respondent also loaned to his son a small sum of money in order that he might start in the business. After the Sunset Auto Service Company had begun conducting its business, it is claimed by the appellant that the respondent took an active part therein to such an extent that he violated the agreement which he had made when he sold the garage business which he had previously operated to the appellant. The evidence is in conflict. The trial court found that the respondent was in no manner connected with the business nor derived any profits therefrom. We cannot say that this view of the trial court is not sustained by the evidence, which as stated, is conflicting. The fact that the respondent loaned to his son a small sum of money and received rent from the building would not constitute engaging in business in violation of the agreement. Gallup Electric Light Co. v. Pacific Improvement Co., 113 P 848, 16 N.M. 86; Hadsley v. Dayer-Smith, Ann. Cas. 1915A, 379. The case of Nelson v. Brassington, 116 P. 629, 64 Wash. 180, Ann. Cas. 19...