Metts v. Wenberg

• Decision Date: 05 November 1930
• Docket Number: No. 13016.,13016.
• Citation: 155 S.E. 734
• Parties: METTS et al. v. WENBERG.
• Court: South Carolina Supreme Court

155 S.E. 734

METTS et al.

v.WENBERG.

No. 13016.

Supreme Court of South Carolina.

Nov. 5, 1930.

The legal remedy was inadequate in view of the difficulty of determining the exact measure of damages, and judgment against defendant would be unavailing in view of his insolvency as shown by absence of available property and an unsatisfied judgment against him at the time of the trial.

Appeal from Common Pleas Circuit Court of Orangeburg County; B. H. Moss, Judge.

Action by H. L. Metts and L. W. Metts, trading as Metts Brothers, against A. L. Wenberg.Judgment for plaintiffs, and defendant appeals.

Affirmed.

J. Leroy Dukes and Wolfe & Wolfe, all of Orangeburg, for appellant.

T. B. Bryant, Jr., of Orangeburg, for respondents.

SMITH, A. A. J.

On the 11th day of October, 1928, the appellant, a barber by trade, and then engaged in such business in the city of Orangeburg, S. C, and his wife, entered into a contract with the respondents, competitors in business, whereby in consideration of the sum of $10 and other valuable consideration, the wife sold to the respondents all fixtures and furnishings used in the barber shop operated by the appellant and the good will of the barber shop business and trade enjoyed by the said shop, and the appellant covenanted that he would "not during the next five (5) years hereafter engage in the barber trade directly or indirectly within the city of Orangeburg."

The appellant and his wife thereafter left the city of Orangeburg, and for a considerable time he pursued his calling in the city of Wilmington, N. C.He and wife returned to Orangeburg about the 7th day of April, 1930, presumably on account of the impaired health of his wife, and admits that he was at the commencement of this action engaged in his trade; that he was in the employment of H. O. Fabian who owns and operates a barber shop within the limits of the city of Orangeburg; and that he was working for a compensation under the usual commission terms as generally recognized in the barber trade.

This action was commenced on the 9th day of April, 1930, in the Orangeburg countycourt, for the sum of $2,500 damages, and to enjoin the appellant from engaging further in the barber trade during the term of said contract; the contention being that his employment asabove stated is in violation of the terms thereof.

The appellant admits the execution of the contract, but denies that he has violated the same as urged, and contends that it was only within the contemplation of the contracting parties that the appellant should be prohibited from opening and operating a barber shop; that such contract did not prevent his working under a contract of employment in a shop in which he had no proprietary interest, and that any other construction would render such contract unlawful and void as being wholly unreasonable, contrary to public policy, and in unlawful restraint of trade.

At the April, 1930, term or the county court, the cause was heard by the Hon. B. H. Moss, county court judge, who had previously denied an injunction pendente lite.At the conclusion of the testimony, and before the argument, the appellant submitted a motion to the court to amend his answer so as to conform the same to the proof offered and to make available the plea that inasmuch as the testimony offered showed that the property sold, and the incident good will, were the exclusive property of the wife of appellant and that the additional restrictive covenant on the part of the husband was voluntary, lacking in mutuality, and without consideration, which motion was denied.

The presiding judge thereafter rendered a decree in favor of the respondents wherein all the contentions of the appellant were denied, and it was further adjudged that the appellant should not, prior to the 11th day of October, 1033, the expiration of the five-year period, pursue his trade directly or indirectly by operating a barber shop as the owner or proprietor, or by working as a barber in any barber shop within the city of Orangeburg owned or operated by any person, firm or corporation.

The appeal presents for the determination of the court the questions: (1) As to whether or not the amendment should have been allowed; (2) whether the contract in question is subject to the objections urged; (3) if valid, whether its provisions include such employment as appellant was engaged in; and (4) whether, injunctive relief should have been granted.

In our well-established system of judicial procedure, a very liberal provision is made for the allowance of amendments to pleadings in furtherance of justice by the statute(section 436,Code of Civil Procedure 1922), and while the application of the...