Pankonin v. Gorder

• Decision Date: 04 December 1914
• Docket Number: No. 17920.,17920.
• Citation: 97 Neb. 337,149 N.W. 811
• Parties: PANKONIN v. GORDER ET AL.
• Court: Nebraska Supreme Court

97 Neb. 337

149 N.W. 811

PANKONIN

v.GORDER ET AL.

No. 17920.

Supreme Court of Nebraska.

Dec. 4, 1914.

Syllabus by the Court.

The contract of sale and contract of lease, and the contract supplemental thereto, set out in the opinion, construed together as constituting the contract of sale and lease between the parties.

The good will of an established business is a merchantable commodity, and where the same is expressly sold with the business to which it applies, and the measure of damages for a breach of the sale thereof is agreed upon and stipulated between the parties at the time, such agreement will be sustained by the courts unless it is made to appear that the amount so agreed upon is so excessive as to constitute a penalty, rather than compensation.

The decree of the district court, affirmed by this court in Gorder & Son v. Pankonin, 83 Neb. 204, 119 N. W. 449, 131 Am. St. Rep. 629, examined, and held res judicata as to the question of the right of defendants to occupy the premises involved, for the period of time in controversy, on the same terms and conditions under which they entered into the possession of the same.

Appeal from District Court, Cass County; Travis, Judge.

Action by Herman E. Pankonin against Fred H. Gorder and others. From judgment for defendants, plaintiff appeals. Affirmed.

See, also, 83 Neb. 204, 119 N. W. 449, 131 Am. St. Rep. 629.D. O. Dwyer and A. L. Tidd, both of Plattsmouth, for appellant.

Rawls & Robertson, of Plattsmouth, and Jesse L. Root, of Omaha, for appellees.

FAWCETT, J.

Plaintiff instituted this action in the district court for Cass county, to recover rent for certain premises in the village of Louisville, in that county. The jury returned a verdict in favor of defendants, upon which judgment was entered, and plaintiff appeals. The issues joined by the pleadings and necessary to be considered will sufficiently appear in the discussion of the case.

[1][2][3] In February, 1901, plaintiff was a dealer in implements and harness in the village of Louisville. On the 13th of that month he entered into a contract to sell to defendants, or to the firm of Fred Gorder & Son, of which firm the defendants are surviving partners, his stock of goods, with certain exceptions which need not be noted, and in and by the same instrument contracted to rent the buildings and all warerooms in which the business had theretofore been conducted, to the defendants for a term of one year with the privilege of five years or more, at a monthly rental of $22, and contracted “to stay out and not engage in the implement or harness business in Louisville, Neb., so long as the first party (the defendants) rents said building at above rent.” Two days later, on February 15th, the parties executed a formal lease for a term of five years, from February 20, 1901, with an option to defendants to have a renewal of the lease at the expiration of that term for a period of one year or more, up to five years. In these contracts a reservation was made by plaintiff of office room in one of the buildings. On September 12, 1902, the parties entered into another agreement, which purported to be additional and supplemental to the agreement of February 15, 1901. This supplemental agreement recited that it was made in consideration of the settlement of certain differences which had arisen between the parties, on account of a breach by plaintiff of the conditions of the lease entered into on February 15th. It stipulated that, in addition to the covenants in the former contract contained, plaintiff was to have the use of one-half of the building on lot 294, and an increase of the monthly rental to $23.50 per month. The lease executed February 15th recited:

“Also in consideration of the covenants and agreements hereinafter specified to be done and performed by second party, first party agrees to, and hereby does, sell and assign to second party, his good will in the business of general harness store and implement store, excepting that of pumps and windmills, which he is now carrying on in said business, located on said property; and agrees not to engage in the same business in the village of Louisville, during the continuance of this lease. In consideration of the leasing of said premises from said first party, and of the agreement on the part of the first party to remain out of the general harness and implement business in the village of Louisville as above specified during the term of this lease, second party hereby agrees with the first party to pay said first party the sum of twenty-two ($22) dollars per month, payable monthly in advance. It is further stipulated and agreed between the parties that in case first party, at any time during the period of this lease, carries on or engages in the general harness and implement business such as he is selling to second party, that second party is to have the use of said buildings from such time until the expiration of this lease free of charge without the payment of any rent. It is further mutually understood and agreed between the parties hereto that at the expiration of the term of this lease, second party has the option of leasing said buildings for a period of one year or more up to five years for the same consideration, and upon the same terms and conditions as are in this lease named.”

In the agreement of September 12, 1902, in which the rental is increased to $23.50 per month, plaintiff again agreed in express terms that he would not engage in the general harness and implement business, such as he had sold to defendants, in the village of Louisville, either on his own account or in partnership with any other person either directly or indirectly, and that in case he did so engage in that business defendants were to have the use of the buildings from such time until the expiration of the lease free of charge, without payment of rent, “and that such rental value is hereby fixed and agreed between the parties hereto as liquidated damages which said...