Mingus v. Broom
| Decision Date | 26 November 1943 |
| Docket Number | 15589. |
| Citation | 27 S.E.2d 801,203 S.C. 450 |
| Parties | MINGUS v. BROOM. |
| Court | South Carolina Supreme Court |
E W. Johnson, of Spartanburg, for appellant.
Johnson Johnson & Foster, of Spartanburg, for respondent.
This action was commenced in the Court of Common Pleas for Spartanburg County on or about the 6th of March, 1943. Attached thereto was a Rule requiring the respondent to Show Cause on March 13, 1943, why an injunction pendente lite should not be issued restraining him from "engaging in the beer business in the City of Spartanburg" pending a hearing upon the merits of the case. The prayer of the complaint sought an injunction restraining the respondent from "engaging in the beer business in the City of Spartanburg" for a period of five years.
The appellant alleged that he had secured from the respondent a written option in August, 1942, to purchase from him a combined restaurant and beer business located in the City of Spartanburg known as the "Painted Post," and in the option it was agreed that if the purchase was consummated the respondent would enter into a written contract substantially conditioned, among other things, that for a period of five years from the sale the respondent would not: "*** directly or indirectly, as a stockholder or otherwise *** engage in the restaurant, beer, lunch room or grill business within the corporate limits of the City of Spartanburg."
The complaint further alleged that the sale was consummated for a price of more than $10,000 and a contract duly executed by the respondent whereby he contracted and agreed, among other things, that for a period of five years from the date thereof (September 1, 1943) he would: "*** not directly or indirectly, as a stockholder or otherwise nor will I allow my name to be used, engage in the restaurant, beer, lunch room or grill business within the corporate limits of the City of Spartanburg."
The complaint continued by alleging that the appellant upon hearing that the respondent was about to go into the beer business wrote him a letter calling his attention to the contractual provision, that the respondent nevertheless went into the wholesale beer business under the name and style of Acme Distributing Company, and that he was now in that business in the City of Spartanburg.
For a second cause of action it was alleged that the respondent was sole distributor of Pabst Blue Ribbon draught beer, that this was the brand of beer profitably established at the "Painted Post," that in 1942 there was a shortage of beer and should this arise in subsequent years, unless appellant changed his brand of beer (Pabst Blue Ribbon draught beer was sold almost exclusively by him), he might well be at the mercy of the respondent, that by discounts and sharp practices on the part of the respondent, as well as by being indebted to him, the appellant was placed in a hazardous and unadvantageous position; and for this, other than by injunction, he had no adequate relief. He sought an injunction, for the period of five years specified in the contract, against the respondent from engaging in the wholesale beer business in the City of Spartanburg.
Reserving the right to make further Return, by way of Answer and supporting affidavits, and simultaneously serving it, the respondent demurred that the complaint "fails to state facts sufficient to constitute any cause of action."
Upon the argument before Judge T. S. Sease, the respondent opened and closed on the Demurrer, the Return, the Answer and Reply; the latter being interposed by the appellant. Subsequent to the argument on the Demurrer, an Order was issued sustaining the Demurrer, and it is from such Order that an appeal is prosecuted to this Court.
The foregoing statement of the case is taken almost verbatim from the "Statement" contained in the Transcript of Record.
While there are three exceptions to the Order of the Circuit Court, the only "Question Involved" is that stated in the respondent's brief, reading: "Should demurrer on ground of failure to state any cause of action be sustained to a purchaser's complaint alleging breach of contract by, and seeking an injunction pendente lite against vendor who sold him a combined restaurant and beer bar and agreed for a definite time and place not to engage in the restaurant, beer, lunch room or grill business and who within the time and place so designated became engaged in the wholesale beer business when it appears from the complaint that in the business sold beer was sold only at retail and vendor has become engaged in the business of distributing beer at wholesale only?"
Preliminary to arguing his exceptions, the appellant calls to the...
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