Merager v. Turnbull

• Decision Date: 21 February 1940
• Docket Number: 27765.
• Citation: 99 P.2d 434,2 Wn.2d 711
• Parties: MERAGER v. TURNBULL et al.
• Court: Washington Supreme Court

99 P.2d 434

2 Wn.2d 711

MERAGER v. TURNBULL et al.

No. 27765.

Supreme Court of Washington

February 21, 1940

Department 1.

Suit by O. G. Merager, doing business as Turnbull-Merager Funeral Home, against Alex Turnbull and others for damages and injunctive relief on account of alleged violation of restrictive covenant in the contract of sale of business and alleged unfair competition in the use of business name. From a judgment for the plaintiff, defendants appeal.

Affirmed.

Appeal from Superior Court, Spokane County; R. M. Webster, judge.

Hamblen, Gilbert & Brooke, of Spokane, for appellants.

Robertson & Smith, of Spokane, for respondent.

MILLARD Justice.

October 16, 1929, Alex Turnbull and O. G. Merage entered into a conditional sale contract under the terms of which Turnbull sold to Merager all the personal property used by the vendor in connection with an undertaking business upon the premises owned by the vendor and known as 615 West Fourth Avenue Spokane, Washington. Included in the sale to Merager were the good-will of the business and the right to the use of the name 'Turnbull Funeral Home' in the future conduct of the undertaking business. The vendor agreed, as one of the terms of the contract, to refrain from engaging in the undertaking business within the limits of the city of Spokane. Five thousand dollars of the stipulated purchase price of twenty-two thousand dollars for the business personal property and equipment were paid at the time of the execution of the contract. The remainder of the purchase price was payable in monthly installments of one hundred and seventy-five dollars for five months and thereafter at the rate of one hundred dollars monthly. Turnbull and wife executed a lease to Merager (who had been in the undertaking business in St. Maries, Idaho, immediately prior to purchase of the business in question from Turnbull) covering the mortuary building, which was a frame residence remodeled for mortuary purposes, for a term of five years at a monthly rental of seventy-five dollars.

Merager has been in continuous posession of the building and business since the execution of the contract and lease. Turnbull retained no interest in the business or property other than the interest he had under the contract for the purpose of security of payment of the remainder of the purchase price. For seven and one-half years after the sale of the business Turnbull, who was not obligated so to do retained the use of a portion of a desk in the office and assisted Merager gratuitously in handling funerals etc.

Bruce Turnbull, son of Alex Turnbull, was born in 1899. He was a trained mortician and was a licensed embalmer. He lived in Spokane from boyhood and worked with his father in the undertaking business until the World War, when he enlisted in the United States Army. From 1927 to 1937, Bruce Turnbull operated an undertaking business in Sandpoint, Idaho, under the name of 'Turnbull Company.' Bruce Turnbull closed that business and returned to Spokane because of cessation of lumbering, the town's principal industry.

Negotiations, in which Alex Turnbull participated, between a Mr. and Mrs. Andrews and Bruce Turnbull culminated August 1937, in a contract between Bruce Turnbull and the Andrews under which the former was to conduct an undertaking business on Third Avenue in a building owned by Mr. and Mrs. Andrews. Bruce Turnbull operated the undertaking business under the name 'Turnbull Company' or 'Turnbull Company, Funeral Directors.' While Merager was entitled thereto, he did not use the name 'Turnbull Funeral Home,' but operated under the name 'Turnbull-Merager Funeral Home.'

Early in the operation of the undertaking business by Bruce Turnbull on Third Avenue, the son and father published a number of advertisements in the local newspapers in which it was represented that Alex Turnbull was interested with Bruce Turnbull in the undertaking business and that the business then and there conducted was in effect a continuation of the old original Turnbull Company.

Until June 30, 1938, Bruce Turnbull conducted the undertaking business at the location of the Spokane funeral home on Third Avenue. He was unable to obtain an extension of his contract with Andrews. Until October 1938, when the undertakers of the city entered into a written agreement which barred such use of their facilities, Bruce Turnbull handled such business as came to him under an arrangement with one or two undertakers of the city for which he paid to them a stipulated sum for the use of their facilities. He then utilized a garage on the rear of his father's home property as a preparation room. In the cases handled by him under those conditions the funeral services were conducted in some church.

Alex Turnbull decided to build a mortuary on his property at the corner of Fourth and Howard streets to aid his son, Bruce. This property was unimproved except for a number of small garages at the rear, and except, also, for the building occupied by Merager on one corner of the block. In November, 1938, plans for the building were announced in the press and the information was given to the public that the business would be conducted therein by both Alex Turnbull and Bruce Turnbill. The notice in the local daily newspaper announced in large letters that

'Turnbull Plans Forty Thousand

Dollar Mortuary'

which would be occupied by Alex Turnbull and son, Bruce Turnbull.

The business conducted by Merager in the old Turnbull location is at 615 West Fourth Avenue, which is the southeast corner of Fourth Avenue and Wall street. The southwest corner of Fourth Avenue and Howeard is the other half of the block of property of Alex Turnbull to the east. That is, the Turnbulls contemplated the erection of a modern mortuary next door, in fact, to the remodeled dwelling house in which Merager was conducting the business he had purchased from Alex Turnbull for twenty-two thousand dollars under contract which obligated Turnbull to refrain from engaging in the undertaking business within the limits of the city of Spokane.

Merager instituted an action against Alex Turnbull and wife, and Bruce Turnbull and wife, to recover damages and injunctive relief on account of the alleged violation of the restrictive covenant in the contract of sale of the business to the plaintiff and because of alleged unfair competition in the use of a business name. Trial of the cause to the court resulted in entry of a decree enjoining defendants from operating, engaging, participating or assisting in any manner in the conduct of an undertaking business under any name in the new structure or upon the premises owned by Alex Turnbull at the corner of Fourth Avenue and Howard street. The decree further enjoins Alex Turnbull from engaging or participating in any manner in the conduct or operation of any undertaking business within the limits of the city of Spokane; and enjoins Bruce Turnbull from engaging in the undertaking business within the city of Spokane under any name or designation embracing the word 'Turnbull' other than his own individual name of Bruce Turnbull. Plaintiff was awarded recovery in the amount of twenty-five hundred dollars against defendants. Defendants appealed.

Error is first assigned on admission in evidence of certain exhibits relating to attempt to compel forfeiture of the contract between Alex Turnbull and respondent, and the increasing of the rental of the building leased by Turnbull to respondent.

At the time of the framing of the issues, upon motion of appellants, the following allegation of the complaint was stricken: 'In about the month of May, 1937, in an attempt to compel plaintiff to surrender and forfeit said contract and the property sold thereunder in order that the defendants Alex Turnbull and Bruce Turnbull might themselves engage in the undertaking business in Spokane, said defendants conspired to harass the plaintiff by making numerous unjustified demands thereon, repeatedly attempting to increase the rental for said premises from the agreed rental of $75.00 per month to $125.00 per month.'

Counsel for appellants argue that the evidence admitted over objection, prejudiced, as was intended by its introduction, Alex Turnbull in the eyes of the court; and that the admission of the evidence, after the trial court had previously stricken the allegation to which such evidence could only properly be addressed, permitted respondent to not only go into those matters after the allegation had been ruled improper, but, also, placed appellants at a disadvantage in that they had not been afforded an opportunity to converse with witnesses regarding that phase of the case.

This is an equity case triable de novo on appeal. Evidence improperly admitted will be rejected and the decree based upon evidence, if any, which was admissible. That is, if the evidence of which appellants complain was inadmissible we may eliminate same and if enough evidence remains in the record to warrant the conclusions and decree of the trial court the same will not be disturbed. Clark v. Gerlinger Motor Car Co., 100 Wash. 1, 170 P. 142.

David L. Andrews, with whom appellants negotiated for a place in which Bruce Turnbull could conduct his undertaking business, was called as a witness by respondent. He testified as follows:

'Mr. Alex Turnbull. He came in and said that his son had given up his business at Sandpoint and said that we had this place at 30 West Third and wanted to know if there wasn't some arrangements could be made so that they could go in business at that place, and I thought a few minutes and I told Mr. Alex Turnbull that I hardly thought it would be a good business proposition because of the fact that there would be two Turnbull establishments in

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