Milwaukee Linen Supply Co. v. Ring

Decision Date06 February 1933
PartiesMILWAUKEE LINEN SUPPLY CO. v. RING.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from a judgment of the Circuit Court for Milwaukee County; Charles L. Aarons, Circuit Judge.

Action by the Milwaukee Linen Supply Company against Edwin A. Ring. From a judgment for defendant, plaintiff appeals.--[By Editorial Staff.]

Affirmed.

Action commenced May 6, 1932, to enjoin a discharged employee from violating his agreement not to solicit or divert the employer's customers or its business or patronage within a stated time and territory. Judgment for defendant entered June 20, 1932. The plaintiff appeals.

The defendant had been for eleven years in the employ of plaintiff as a driver of a wagon collecting and delivering towels and linen in the prosecution of its business of furnishing customers with towels and shop and office linen. On May 14, 1930, the defendant was promoted to the position of route foreman. A contract in writing was then signed by the parties whereby the plaintiff agreed to pay the defendant a stated wage of $42.50 per week, and the defendant agreed that he would not within two years after leaving plaintiff's employment call for or deliver laundered linen to persons who should have been customers of plaintiff and supplied by the defendant during any time he might have been employed under the contract, would not solicit or divert plaintiff's customers or its business or patronage within said period, and would not within said period engage in the supply business, or call for or deliver laundered or unlaundered towels or linens for himself or any other persons within the limits of Milwaukee and specified suburbs.

The contract was not to run for any specified term, but might be terminated by either party on two weeks' notice. The defendant continued to work under said contract until March 7, 1932, when the plaintiff terminated his service by giving the specified notice. The defendant thereafter endeavored to procure employment outside the towel and linen supply business, but was unable to do so. In April, 1932, he was employed as a solicitor by a competitor of plaintiff. The only work he could procure up to this time was peddling soap from door to door, at which he earned about $4 per week. He was partially disabled physically, and the disability so affected his appearance as to handicap him seriously in procuring employment in most lines, and he lacked experience and familiarity with lines of business other than that in which he had been so long employed.

The trial court found as above stated and many other evidentiary facts well supporting its conclusions of ultimate fact: (17) That the restrictions against defendant's employment sought in this action to be enforced by the plaintiff are not reasonably necessary for the fair protection of the plaintiff's business or rights; (18) that said restrictions unreasonably restrict the rights of the defendant, giving due consideration to the existing circumstances; (19) that the interests of the public would be adversely affected under present conditions by the granting of the injunction prayed for and the keeping of the defendant out of employment, without any appreciable benefit to the plaintiff; (20) that the plaintiff has failed to prove that irreparable injury will result to it if the injunction asked for in this action is not granted; (21) that the granting of the injunction to plaintiff would do more injustice than justice and would result in greater damage to the defendant and the public than corresponding benefit to the plaintiff.” Judgment was entered dismissing the complaint on the merits.

Robert B. Ells, of Milwaukee, for appellant.

Alfred C. Rudolph, of Milwaukee, for respondent.

FOWLER, J.

[1][2] The contract in suit is one in restraint of trade, which is tersely defined as one whose “performance would limit competition in any business or restrict a promisor in the exercise of a gainful occupation.” Such a contract “is illegal if the restraint is unreasonable,” and such a contract “is unreasonable * * * if * * * it (a) is greater than is required for the protection of the person for whose benefit the restraint is imposed, or (b) imposes undue hardship upon the person restricted.” Restatement of the Law of Contracts, §§ 513, 514, 515. It will be observed that the findings of the learned trial judge designated above as (17) and (18) find as facts that the contract in suit is unreasonable as violating (a) above, and in effect for violating (b). Finding (17) appears to us to be amply supported by the evidence as does (18) when other evidentiary facts found are considered in connection with it.

[3] The appellant contends that the decision of the trial court is in direct conflict with the decision of this court in Eureka Laundry Co. v. Long, 146 Wis. 205, 131 N. W. 412, 35 L. R. A. (N. S.) 119. It might so seem at first blush. The contracts involved are practically alike in their terms. But a contract in restraint of trade may be valid as applied to one set of circumstances and invalid as applied to another set. The circumstances involved in the two cases are dissimilar in many respects. There the defendant was a driver of a wagon collecting and delivering laundry, and the injunction issued only restrained him from operating in violation of his contract upon the route on which he had served the plaintiff; here the plaintiff seeks to enjoin the defendant from soliciting in the entire city of Milwaukee and its suburbs, and the employee was not a driver, but a route...

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25 cases
  • Heder v. City of Two Rivers
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • June 12, 2001
    ...ability of everyone everywhere"; against these concerns is balanced the employer's right to protection. Milwaukee Linen Supply Co. v. Ring, 210 Wis. 467, 472, 246 N.W. 567 (1933). Covenants not to compete are therefore subject to a reasonableness test, under which the courts will enforce no......
  • Donahue v. Permacel Tape Corp.
    • United States
    • Indiana Supreme Court
    • June 20, 1955
    ...236 N.Y. 312, 140 N.E. 708, 29 A.L.R. 1325; Unity Coat & Apron Co. v. Battist, 1933, 148 Misc. 411, 264 N.Y.S. 801; Milwaukee Linen Supply Co. v. Ring, 1933, 210 Wis. 467, 246 N.E. 567; 36 Am.Jur. 555; 17 C.J.S., Contracts, § 254, p. 636; Restatement of Contracts, Vol. II, § To what conclus......
  • Rollins Burdick Hunter of Wisconsin, Inc. v. Hamilton
    • United States
    • Wisconsin Supreme Court
    • April 29, 1981
    ...Inc. v. Raduege, supra; Lakeside Oil Co. v. Slutsky, supra; Wisconsin Ice & Coal Co. v. Lueth, supra; Milwaukee Linen Supply Co. v. Ring, 210 Wis. 467, 246 N.W. 567 (1933); Eureka Laundry Co. v. Long, 146 Wis. 205, 131 N.W. 412 (1911). But the customer contact notion takes on a new dimensio......
  • Fullerton Lumber Co. v. Torborg
    • United States
    • Wisconsin Supreme Court
    • June 1, 1955
    ...Our court has consistently recognized this difference with respect to applying the test of reasonableness, Milwaukee Linen Supply Co. v. Ring, 1933, 210 Wis. 467, 246 N.W. 567, and has allowed a much greater scope of restraint in contracts between vendor and vendee than between employer and......
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