Midland Lumber & Coal Co. v. Roessler

Decision Date09 December 1930
Citation233 N.W. 614,203 Wis. 129
CourtWisconsin Supreme Court
PartiesMIDLAND LUMBER & COAL CO. v. ROESSLER.

OPINION TEXT STARTS HERE

Appeal from a judgment of the Circuit Court for Clark County; Emery W. Crosby, Circuit Judge. Reversed.

Action commenced on the 15th day of October, 1929, by Midland Lumber & Coal Company, a corporation, plaintiff, against Otto Roessler, defendant, to restrain the defendant from breaching a contract not to engage in the lumber business within a radius of 10 miles of the city of Neillsville. From a judgment rendered in favor of the plaintiff against the defendant on the 31st day of May, 1930, the defendant appeals.

For a number of years prior to 1927 the defendant had been engaged in the retail lumber business at Neillsville, Wis. On the 6th day of January, 1927, defendant sold said business to one J. A. McCampbell. The contract of sale contained this provision: “The said Otto Roessler hereby agrees to turn over to the said J. A. McCampbell his successors and assigns the good will connected with this business and the said Otto Roessler further agrees for a period of ten (10) years from this date, he will not engage in the lumber business within a radius of ten (10) miles of the city of Neillsville, Wisconsin.”

On the 29th day of January, 1927, the plaintiff purchased from McCampbell all of the rights of said McCampbell under said contract of sale, since which time it has been operating the business formerly owned by Roessler at the city of Neillsville.

In June or July of 1928 the defendant established himself in the lumber business in the village of Chili, which is 12 1/2 miles from the city of Neillsville, on a straight line, and about 15 miles by the nearest highway. It is plaintiff's contention that, since the defendant established himself in said business in the village of Chili, he has breached his said agreement not to engage in the lumber business within 10 miles of the city of Neillsville in the following particulars: The defendant is a builder and contractor, and in July, 1928, he entered into a contract with one George Schoening, who lived 10 miles from the city of Neillsville, by which he agreed to build a house for said Schoening, the defendant furnishing all of the material for said building, and in accordance with said agreement the defendant built said building, furnishing all of the material therefor; that in the fall of 1928 the defendant similarly built a barn for one William Bistier, within said 10-mile radius, furnishing all of the material therefor; that in July, 1928, one Blackman, living in the city of Neillsville, went to the village of Chili and purchased some shingles from the defendant and requested the defendant to deliver said shingles at his home in the said city of Neillsville; that the defendant maintains a home in the said city of Neillsville, and usually leaves his place of business on Saturdays of each week and spends Sundays at his home in Neillsville; that the place of residence of said Blackman is on the usually traveled route of said defendant from Chili to Neillsville, and said defendant, at the request of Blackman, delivered such shingles to Blackman on one of defendant's trips to Neillsville; that in August of 1928 the defendant sold some lumber to one Dan Nickel, living within the 10-mile radius, and delivered the said material to said Nickel. One Al Jensen, living within the 10-mile radius, got some material of defendant at Chili for his house, which defendant delivered. It also appears that William Schlinkert, George Begley, Ernest Kuechenmeister, and L. E. Moh, all living within the 10-mile radius, came to the defendant's place of business at Chili, purchased lumber and building material, and hauled the same home themselves.

Upon this state of facts the court rendered judgment restraining the defendant from building, contracting to build, delivering, or causing to be delivered to any person residing within the 10-mile limit provided by said contract any building material of any nature or kind whatsoever, either by his own solicitation or by the solicitation of any customer, and from selling or offering to sell to any persons residing within the 10-mile limit any lumber, material, or other commodities covered by the said contract, and from selling to any contractor residing within the 10-mile radius any lumber or material which may be used...

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8 cases
  • Fiel v. City of Racine
    • United States
    • Wisconsin Supreme Court
    • 9 d2 Dezembro d2 1930
    ... ... In Busse v. Rogers, 120 Wis. 443, 98 N. W. 219, 64 L. R. A. 183, a lumber pile encroached on the public street, and a child on the street climbed ... ...
  • Fullerton Lumber Co. v. Torborg
    • United States
    • Wisconsin Supreme Court
    • 1 d3 Junho d3 1955
    ...to enforce by enjoining the employee from violating its terms.' Annotation, 52 A.L.R. 1364. Cases such as Midland Lumber & Coal Co. v. Roessler, 1930, 203 Wis. 129, 233 N.W. 614; Kradwell v. Thiesen, 1907, 131 Wis. 97, 111 N.W. 233; My Laundry Co. v. Schmeling, 1906, 129 Wis. 597, 109 N.W. ......
  • Waters by Murphy v. U.S. Fidelity & Guar. Co., 84-573
    • United States
    • Wisconsin Court of Appeals
    • 10 d3 Abril d3 1985
  • Checket-Columbia Co. v. Lipman
    • United States
    • Maryland Court of Appeals
    • 11 d3 Fevereiro d3 1953
    ...that area. Richards v. Shipley, 257 Pa. 134, 101 A. 456; Johnson v. Stumbo, 277 Ky. 301, 126 S.W.2d 165; Midland Lumber & Coal Co. v. Roessler, 203 Wis. 129, 233 N.W. 614; Foxworth-Galbraith Lumber Co. v. Turner, 121 Tex. 177, 46 S.W.2d 663, 87 A.L.R. For example, in Sander v. Hoffman, 64 N......
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