Nelson v. Brassington

• Decision Date: 14 July 1911
• Citation: 116 P. 629,64 Wash. 180
• Court: Washington Supreme Court
• Parties: NELSON v. BRASSINGTON.

116 P. 629

64 Wash. 180

NELSON v. BRASSINGTON.

Supreme Court of Washington

July 14, 1911

Department 1. Appeal from Superior Court, King County; D. H. Carey Judge.

Action by Charles Nelson against James Brassington. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Higgins Hall & Halverstadt, for appellant.

Faben &amp Kelleran, for respondent.

FULLERTON J.

On and prior to July 27, 1909, the respondent Brassington owned and operated a butcher business in one of the outlying districts of the city of Seattle, and on the date named sold the same to the appellant Nelson executing and delivering to him the following bill of sale and contract: 'Know all men by these presents, that James Brassington, of Seattle, the party of the first part, for and in consideration of the sum of seven hundred fifty ($750.00) dollars, lawful money of the United States of America, to them in hand paid by Charles Nelson, of same place, the party of the second part, the receipt whereof is hereby acknowledged, does by these presents grant, bargain, sell and convey unto the said party of the second part, his executors, administrators and assigns, the butcher business consisting of all the fixtures, tools, racks, scales, etc., now in use, and being used for the carrying on of said butcher business, said business and said fixtures, tools, racks and scales being located in the storeroom designated as No. 4865 Rainier Avenue, Seattle, Washington; said business is known as the Rainier Valley Meat Market; the said party of the first part agreeing to not enter into the butcher business within 12 blocks of said building for a period of two (2) years from this date. To have and to hold the same to the said party of the second part, his executors, administrators and assigns forever. And James Brassington does for his heirs, executors and administrators covenant and agree to and with the said party of the second part, his executors, administrators and assigns, to warrant and defend the sale of the said property, goods and chattels hereby made unto the said party of the second part, his executors, administrators and assigns, against all and every person and persons whomsoever lawfully claiming or to claim the same. In witness whereof, I have hereunto set my hand and seal the 27th day of July in the year of our Lord one thousand, nine hundred and nine. James Brassington. [Seal.] Signed, sealed and delivered in the presence of Willard Burbank, J. A. Kelso.'

In March, 1910, before the expiration of two years from the time of the execution of the bill of sale the respondent, with the co-operation of his brother-in-law, began preparations to open up a butcher shop within 12 blocks of the place of business described in the bill of sale. The brother-in-law took a lease in his own name of a building near the appellant's market for a term of years, and advanced the sum of $500 to be used in the prosecution of the enterprise. The work of fitting up the market was under the immediate supervision of the respondent. He purchased on his own credit the lumber necessary to fit up the interior of the building and the market fixtures necessary for use in the shop, and seems to have had complete charge of all of the details. He caused a sign to be printed and stretched across the face of the building to the effect that the place would be opened up as a meat market on a certain day under the name of 'Yakima Meat Market, James Brassington, Manager.' He also requested the editor of the local paper 'to give him a boost,' and from data furnished by him the following was produced and published:

'Returns to Columbia.

'James Brassington will Open Another Meat Market.

'James Brassington, the pioneer butcher of the Rainier Valley, who for many years conducted the Rainier Valley Market, opposite the Record office, has returned to Columbia, where he will again go into business.

'Several months ago Mr. Brassington sold his business in Columbia to Charles Nelson and went to North Yakima, where he became associated with the Yakima Meat Company. But the Eastern part of the state did not appeal to him like the Rainier Valley, and he has returned. He has leased the room formerly occupied by Grayson's hardware store and is having it refitted for a market, which is to be supplied with all the latest and improved sanitary appliances.

'It will be a sanitary market in every sense of the term, Mr. Brassington declares, and will be known as the Yakima Cash Market. Most of the meat will be supplied direct from the abattoirs of the Yakima Meat Company, all being butchered under the closest inspection and sanitary arrangements. Mr. Brassington will also carry fish and game in season, thus affording residents of the valley a home place to purchase everything in the meat and fish line. He expects to open for business about next Thursday, or Friday.'

On these facts appearing the appellant conceived that the respondent was undertaking to engage in the butcher business in violation of the agreement contained in the bill of sale and brought the present action to restrain him from so doing. The appellant in his complaint set up the bill of sale and the agreement not to enter into business as therein contained, and alleged a violation thereof on the part of the respondent. The respondent defended on two grounds: First, that the agreement not to enter into business contained in the bill of sale was executed by him without consideration; and, second, that the business in which he was about to engage was in fact the business of his brother-in-law, one Holly Cooper, and that his only interest therein was that of manager for a stated salary, he having no interest in the profits thereof. The trial court found with the contention of the respondent and entered a judgment dismissing the appellant's action. This appeal was thereupon taken.

The trial court found that the fair market value of the several articles of personal property sold by the respondent to the appellant approximated the sum paid as the consideration for the sale, and hence concluded that there was no consideration for the remaining part of the agreement not to enter into business within the prohibited territory. But this is not the correct test. Courts in transactions of this kind do not inquire into the adequacy of the consideration. This, in the absence of fraud or overreaching, is solely the business of the parties. The court inquires only into the legality of the consideration, not whether the party to be bound made an improvident bargain.

Here there was manifestly a legal consideration. By the bill of sale the respondent for a named sum of money sold to the appellant his business and agreed not to enter into a like business within a distance of 12 blocks of the place of business sold for a period of two years. The payment by the one party of the sum agreed upon furnished a legal consideration for all of the agreements of the other party--the agreement not to enter into business within the prescribed territory for the term of years prescribed, as well as the agreement to transfer the shop and fixtures. Indeed, the court could with the same legal propriety say that the money paid served as a consideration only for the agreement not to enter into a competing business as it can say that it served as a consideration alone for the shop and fixtures. The almost universal authority is to this effect. A case in point is Eisel v. Hayes, 141 Ind 41, 40 N.E. 119, in which the court says: 'The contract is as follows: 'State of Indiana, Jackson County, Agreement between John Eisel and W. H. Hayes, witnesseth: 1st. Eisel sells and delivers to Hayes the following personal property, viz.: 1 butcher's cooler, 1 meat rack (with hooks and pins), 2 meat saws, 2 butcher blocks and one counter, for which said Hayes pays cash in hand the sum of forty-five dollars ($45). And, it is further agreed as a part of this contract, that said Eisel is not to engage in the butcher business in Brownstown, nor nearer thereto than Seymour, Ind., nor sell any meat within that distance, during the time said Hayes carries on the butcher business in Brownstown, Indiana. Said sum of $45 is now paid by Hayes to Eisel. Witness our hands and seals this 20th day of March, 1893. John Eisel. [Seal.] W. H. Hayes. [Seal.]' Appellants contend that the contract does not show any consideration for their...