McMurray v. Faust
| Decision Date | 23 November 1937 |
| Docket Number | 43946. |
| Parties | McMURRAY v. FAUST. |
| Court | Iowa Supreme Court |
Appeal from District Court, Jasper County; J. G. Patterson and Frank Bechly, Judges.
Action by the plaintiff, a physician, against defendant, another physician, to enjoin defendant from practicing his profession in Jasper County, Iowa, for a period of five years under the terms of a contract between the parties, said contract providing that the defendant should not, unless in the employ of the plaintiff, practice his profession within such territory for five years from the date of the contract. Permanent injunction granted against the defendant. Both parties appealed; plaintiff from a ruling on a motion to dissolve the temporary injunction, and the defendant from the final decree.
Affirmed.
Cross & Hamill, of Newton, for appellant.
Korf & Korf, of Newton, for appellee.
In this case the plaintiff sought an injunction against the defendant, and, upon presentation of the petition to the court, we take it ex parte, a temporary injunction was granted. Subsequently a motion was made to dissolve the temporary injunction. This was contested and the temporary injunction was dissolved. The plaintiff appealed from this ruling. The case then came on for trial in the district court, and the testimony introduced was the testimony upon which the temporary injunction was dissolved by Judge Patterson, who had issued the temporary injunction.
The hearing on the merits was before Judge Bechly and the result of the hearing on the merits was that the permanent injunction was granted. From the granting of the permanent injunction, the defendant appealed to this court. The record of the hearing and the evidence introduced for the dissolution of the temporary injunction was the same record that was made on the final hearing, which resulted in a permanent injunction.
So in this opinion, to avoid confusion, the appellant herein will be called " plaintiff," and the appellee herein will be called " defendant." The case is one between two physicians, the plaintiff being Dr. E. A McMurray, and the defendant Dr. John H. Faust, and the suit was brought by plaintiff for the purpose of enjoining the defendant from practicing medicine and surgery in Jasper county, Iowa, for a period of five years from the 1st day of April, 1935.
The plaintiff was a physician with an extensive practice in Jasper county, built up through the years of attention to business. The defendant was employed by the plaintiff to assist him in that business. There was a written contract between the parties which contract was attached to the plaintiff's petition as Exhibit A. In this contract which was made the 28th day of March, 1935, Dr. McMurray agreed to employ Dr. Faust for the period of one year from April 1, 1935, to March 31, 1936, to assist him as a physician and surgeon in connection with his practice at Newton, Iowa, and was to pay $200 per month to the defendant during the period of said employment, payment to be made $100 semimonthly, on the 15th and 30th of the month, on and after April 15, 1935. The business was to be carried on under the name of Dr. McMurray, his office being in Newton, Iowa. McMurray was to furnish all the equipment and bear the expenses of rearranging his offices for the convenience of Dr. Faust. Provision was made for a daily account of the work done to be placed on the books, all instruments to be furnished by Dr. Faust would remain his own. Dr. Faust on his part agreed to use his best efforts to maintain and increase the practice of Dr. McMurray, and to assist in receiving and treating patients during office hours, and to make all professional calls and operations as might be necessary for the proper care of the patients he treated whenever requested by Dr. McMurray. Dr. Faust was to furnish his own means of transportation at his own expense. The concluding portion of said contract was as follows:
This action was commenced on April 16, 1936. It will be noticed, by the strict terms of the contract between the parties, Dr. McMurray hired Dr. Faust for a period of one year, which expired March 31, 1936. By the terms of the agreement a written contract expressing the terms of employment, or the basis of business relations between the parties, to become effective upon the termination of the signed agreement, should be exercised prior to the 1st day of March, 1936. That is to say, after Dr. Faust has performed services for Dr. McMurray for eleven months, if he wished further to continue with Dr. McMurray, and Dr. McMurray wish to retain Dr. Faust, there should be a new contract made in writing, executed prior to the 1st day of March, 1936, but to become effective at the date of the expiration of the period for which Dr. Faust was hired in the contract in suit. No such subsequent contract was ever made or entered into, either in writing or verbally.
The petition filed April 16, 1936, asked for a decree and judgment against Faust for practicing medicine and surgery in Jasper county in violation of the agreement, and also that temporary injunction issue restraining him from practicing his profession in Jasper county for five years from April 1, 1935.
The petition being presented to the court then presided over by Judge Patterson, and there being no showing to the contrary, we treat it as if the presentation was ex parte, the court entered on the same day an order granting temporary injunction, with bond at $1,000.
On the 18th day of April, the defendant filed a motion to dissolve the temporary injunction, the grounds of which were:
First. That there is no good and sufficient bond filed in this case with sureties having the qualification required by law.
Second. That the plaintiff's petition shows upon its face that the plaintiff elected to provide his remedy for a breach of said contract, if any, by stipulation for liquidated damages, and that he is bound by said stipulation and is not entitled to an injunction as prayed.
Third. That the defendant is a married man living with his wife and two children who are dependent upon him for support and that his only avocation is that of a physician and surgeon and that said writ will cause the defendant irreparable injury and damages for which he has no plain, speedy, and adequate remedy at law.
Fourth. That the plaintiff does not come into court with clean hands and by reason of said fact is not entitled to any relief herein.
Fifth. That the petition shows on its face that the plaintiff is not entitled to the relief demanded.
In support of the foregoing motion, defendant offers his answer filed herein and prays that he be permitted to introduce oral evidence in support thereof.
On the same day, April 18, 1936, the defendant filed answer in three divisions, the first division being:
Each of the other two divisions of the answer alleged the same matters and things as were alleged in paragraphs 1, 2, and 3, of division I.
In division II it was also alleged that at the time of the entering into the contract it was contemplated by the parties, and it was their intention, that the contract was to be continued following April 1, 1936, if desired by the parties; but, if the contract was not so continued, the defendant was to be permitted to continue the practice of his profession at Newton, Iowa, even though not in the employ of the plaintiff; and that the liquidated damages set forth were agreed upon would be the damages plaintiff would sustain on the termination of the employment; he denied he was insolvent, and alleged his financial condition was better than when the contract was entered into.
In division III it was also alleged that it was the contemplation of the parties that the employment was to continue after April 1, 1936, and that after that date it was orally agreed between the parties that defendant should continue in the employ of Dr. McMurray for another year, upon the basis of one-third of the net profits of the business with a minimum of not less than $300 per month; and that pursuant to this oral contract the defendant entered into and upon the performance of said agreement until the 9th day of April, 1936, at which time he was, without cause or just...
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