Nitta v. Kuda, 49355

• Decision Date: 09 April 1958
• Docket Number: No. 49355,49355
• Citation: 249 Iowa 853,89 N.W.2d 149
• Parties: S. John NITTA, d/b/a American Chick Sexing Association, Plaintiff-Appellant, v. Geraldine KUDA and Jack K. Kuda, Defendants-Appellees.
• Court: Iowa Supreme Court

Page 149

89 N.W.2d 149

249 Iowa 853

S. John NITTA, d/b/a American Chick Sexing Association, Plaintiff-Appellant, v. Geraldine KUDA and Jack K. Kuda, Defendants-Appellees.

No. 49355.

Supreme Court of Iowa.

April 9, 1958.

Leighton A. Wederath and E. J. Furey, Carroll, for plaintiff-appellant.

Meyers & Tan Creti, Carroll, and Harris & Harris, Jefferson, for defendants-appellees.

THOMPSON, Justice.

The blind goddess must, for the purposes of the instant case, be held to be also mute. She should ordinarily be attentive to the pleas of litigants, and prompt to pronounce her edicts; but here she can neither listen nor speak. The action before us is a veritable Rip Van Winkle of a lawsuit. It has slumbered so long in some neglected file or forgotten pigeon hole that any rights the appellant may have had have been lost by the passage of the years. There is nothing we can do for him now.

The foregoing statements require some elucidation. Plaintiff's case is based upon two contracts. The first was between the plaintiff and both defendants. By its terms the plaintiff agreed to find employment for the defendants as chick sexers, a skill which the contract recited he had taught them. Defendants agreed to pay plaintiff fifteen per cent of their earnings in the assigned territory during the period of the contract, which was from February 15, 1947 to December 31, 1949.

The provision of this contract upon which plaintiff's case is based is this: '5. That * * * I will not, during the term hereof and for three years after the expiration hereof, either directly or indirectly solicit the business of nor enter the employ of any hatchery or hatcheryman without your consent.' (Italics supplied.)

Apparently the defendants began operation in assigned territory in northwest Iowa in 1947. But for reasons not here material a new contract was made between the plaintiff and the defendant Jack K. Kuda on January 26, 1948. As did the first contract, it terminated on December 31, 1949. In general the provisions of the two contracts were much the same; but the important restrictive clause in the first, set out above, was materially changed in the second. We quote it herewith: '4. I agree, as part of the consideration for this contract, that I shall not, at any time during this agreement, and for five years after the expiration of this agreement, * * * engage in the business of chick sexing within the territories where I have served as a chick sexer under this agreement. And further, that I will not, for five years after the expiration of this contract, canvas, solicit, or accept business for chick sexing from any customer or customers of the Association whom I have served under this agreement. * * *.' (Italics supplied.)

The plaintiff in his action seems to rely upon both contracts. It appears that after each contract had ended on December 31, 1949, the defendants, or at least Jack K. Kuda, continued to operate in the territory which had been assigned to him under the agreements. The plaintiff's suit was based upon the restrictive covenants of the agreements as above set out, injunctive relief being asked to restrain the defendants from operating in the counties assigned by the contracts; until December 31, 1952, under the first contract, and until December 31, 1954, under the second. The trial court found these clauses invalid and denied plaintiff any relief.

I. The chronology of this case is a perfect illustration of the truism that 'justice delayed is often justice denied.' The action was commenced on December 27, 1950. Trial commenced on June 27, 1951. Up to this point the matter had been handled with reasonable expedition. But the trial was not completed and the cause submitted until February 29, 1952. It was taken under advisement by the trial court, and so remained for almost two years, or until January 27, 1954, when the judgment dismissing plaintiff's petition was entered. Notice of appeal was served on February 20, 1954; but it was not ready for submission in this court until March 11, 1958, when it was submitted on oral argument.

It will be observed that when the trial court decided the case, on January 27, 1954, any possibility of relief for the plaintiff under the restrictive covenant of the first contract was long gone. The term provided was three years from the expiration of the contract, December 31, 1949. Here remained about eleven months before the five year period limited by the second contract would expire. Notice of appeal was taken promptly; but from that point on it required more than four years to reach this court.

The record shows no reason for these delays, nor do we know what may have caused them. Counsel who argued the case before us--Mr. E. J. Furey, for the appellant, and Mr. David Harris, for the appellee--disclaimed responsibility, and we accept their statements. But it is abundantly clear that the questions involved long ago became moot.

As the three year restriction of the first contract ended on December 31, 1952, so the five year period of the second agreement expired on December 31, 1954. There is no provision of either contract that prohibits the defendants, or either of them, from engaging in the business or...