Peltz v. Eichele

• Citation: 62 Mo. 171
• Parties: SAMUEL PELTZ, et al., Respondents, v. AUGUSTUS EICHELE, Appellant.
• Decision Date: 31 January 1876
• Court: Missouri Supreme Court

62 Mo. 171

SAMUEL PELTZ, et al., Respondents,

v.AUGUSTUS EICHELE, Appellant.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

A. J. P. Garesche, for Appellant.

I. The demurrer to the petition should have been sustained by reason of the illegality of the contract. (Addison Contr., 100, § 100; Chit. Contr. [48th ed.], 664; Id., note to p. 665; Comyn. Contr., 438; Sto. Contr., [6th ed., vol. 1,] p. 677, § 550; Id., 684, § 553; Smith Contr., 212, § 128; Parsons Contr., 2d vol., 750 & note; Long vs. Towl, 41 Mo., 398.)

II. Plaintiffs were not entitled to recover, because of their fraud in the procurement of the contract. And it matters not how trivial the damage. (Smith vs. Kay, 7 House Lords, 775.)

III. Plaintiff's recovery is limited to his actual injury by the breach of the contract. (Sedg. Dam., §§ 36, 37; Id., § 229; Calvin vs. Jones, 3 Dana. 577; Thompson vs. Jackson, 14 B. Mon., 118; Olmstead vs. Burke, 25 Ill., 86; Blair vs. Milwaukie, 20 Wis., 262.)

IV. Hence, evidence of what defendant made was illegal, because of a collateral undertaking, and hence too remote. (De Benedetti vs. March, 1 Hilt. [[[[[N. Y.], C. P. 213; Gilpin vs. Consequa, 1 Pet. C. C., 95; Ashe vs. Le Rossett, 5 Jones Law [N. C.], 301; Dubuque W. & Coal Ass. vs. City Dub., 30 Iowa, 184; Eisenlohr vs. Swain, 35 Pa., 107; Lowenstein vs. Chappell, 30 Bar. [S. C.], 241; Travis vs. Duffa, 20 Tex., 56; Rhodes vs. Baird, 16 Ohio, 573; Wainrich vs. Chase, 23 Md., 156; Harwood vs. Lappan, et al., 2 Speers, 550; Lillivant et al. vs. Reardon, 5 Ark., 156; Taylor vs. Maguire, 12 Mo., 319; Hamlin vs. St Win. R. R., 38 Eng. L. & E., 338 [[[[[Williams]; Boyle vs. Reeder, 1 Ind., 614; Abbot vs. Satch, 13 Md., 332; Weime vs. Kelly, 34 Iowa, 339; Rajars vs. Berniers, 69 Pa., 34; Fox et al. vs. Harding, 7 Cush., 522; Story vs. N. Y. & H. R. R., 6 N. Y., 90; Bridges vs. Stickney, 38 Me., 368; Horner vs. Wood, 16 Barb., 387.)Bereman & Smith, for Respondent, cited in argument Chappell vs. Brockway, 21 Wend., 160; 2 Pars. Contr., 748; Presbury vs. Fischer, 18 Mo., 50; Long vs. Towl, 41 Mo., 398; Mitchell vs. Reynolds, 1 P. Will., 181; Mallan vs. May, 13 M. & W., 511; 11 M. & W., 653; Lange vs. Werk, 22 Ohio, 520; Green vs. Price, 13 M. & W., 695; Beard vs. Dennis, 6 Ind., 200; Thomas vs. Miles, 3 Ohio St., 274; Elves vs. Crofts, Jur. vol. 14, p. 855; Pow. Contr., 114; Fox vs. Harding, 7 Cush., 516; Billings vs. Ames, 32 Mo., 265; Jenkins vs. Temples, 39 Ga., 655; Dakin vs. Williams, 17 Wend., 447; Mitchell vs. Reynolds, supra; 1 Smith's Lead. Cas., Part II, p. 1; Gilman vs. Dwight, 13 Gray, 356; Oregon Steam Nav. Co. vs. Winsor, 20 Wall., 64; Gillis vs. Hall, 2 Brewster, 342; Boutelle vs. Smith, 116 Mass., 111; Dean vs. Emerson, 102 Mass., 480; Hardy vs. Martin, Bro. Ch. R., 1798, fol. 341; Slowman vs. Walter, 1 Bro. Ch. R., 366; Scott vs. Mackintosh, 1 Vesey & Beames, 503.)

Plaintiffs were not limited to the profits made by defendant as to their damages. (Pitts vs. Hall, 2 Blatchf., 229; Graham vs. Peate, 40 Cal., 593; Jenkins vs. Temples, 39 Ga., 655; Scott vs. Mackintosh, 1 Vesey & Beames, 503; Warren vs. Jones, 15 Mo., 146.)

HOUGH, Judge, delivered the opinion of the court.

On the 24th day of July, 1865, the defendant, who was a manufacturer of and dealer in matches in the city of St. Louis, entered into a contract under seal with the plaintiff, Peltz, and one Brunaugh, for the sale to them, for the sum of $20,000, of his entire factory and stock in trade, together with good will, proprietary stamp, trade marks, brands, and the use of the names of A. Eichele and A. Eichele & Co., employed by him in said business. This contract contained the following covenant: “Said Eichele, further covenanting, agrees that he will not enter into the manufacture of matches at this or any other place for the term of five years, nor lend his influence, skill, name or countenance, to any other party or parties so engaged, to the detriment of the business thus transferred.”

The consideration was paid and the property, real and personal, was regularly transferred. Soon thereafter, Brunaugh assigned and conveyed to the plaintiff, Allen, all his interest in the contract, and in the property acquired from the defendant. In June or July, 1866, the defendant erected a new factory in the city of St. Louis, about six blocks distant from the one he sold to the plaintiff, and at once engaged in the mauufacture and sale of matches, under the name and style of P. Eichele & Co.

In August, 1869, the plaintiffs sold their factory and stock to the defendant, and in March, 1872, they instituted the present action against the defendant for a breach of the covnant hereinbefore recited, and further averred that the defendant influenced the patrons of the firm of A. Eichele & Co. to become the patrons and customers of P. Eichele & Co., and thereby injured and destroyed the good will of the business so sold by him.

The foregoing are the only breaches alleged. This is important, as it disposes of all that portion of the evidence and argument of counsel as to the use by the defendant of the trade mark sold by him to the plaintiffs.

The defendant denied the breaches alleged and averred that he was induced to enter into said contract through the false representations of Peltz & Brunaugh, that Allen, to whom the defendant had refused to sell, was not and should not become interested in the purchase; whereas, Brunaugh bought for said Allen, and not for himself; of all which the plaintiff Allen was cognizant, and to which he was a party. This was denied by plaintiff.

The testimony, preserved in the bill of exceptions as to the damages suffered by reason of the injury complained of, pertained chiefly to the profits made by the defendant, the solicitation by him of orders from his former customers, and the decline in the plaintiff's business. The testimony is general and somewhat indefinite, and is declared by plaintiff's counsel to be partial and incomplete; and they very earnestly contend on the authority of former decisions of this court, that we cannot pass upon the propriety of the action of the trial court in giving and refusing instructions, nor can we undertake to pronounce upon the sufficiency of the testimony to support the verdict, inasmuch as the bill of exceptions does not recite that it contains all the evidence. We mention this matter, not because we deem it to be of any practical importance in this case, but simply in order to call attention to Rule No. VII, which was adopted by this court on that subject at the October Term, 1871, and, though published in the 48th vol. of our reports, seems not to have attracted the general attention of the bar.

The following instructions were given at the instance of the plaintiffs:

1st. The court instructs the jury, that if they find from the evidence that the defendant sold to Peltz and Brunaugh the match factory, property and appurtenances, stock in trade and business of manufacturing matches in St. Louis, and the good will of the business, and proprietary stamp thereof, and the right to use the name of A. Eichele & Co., and the right to use the name of A. Eichele and A. Eichele & Co., and the right to use the same label or trade mark, then used by the defendant, and agreed with them not to re-enter into the business in St. Louis for five years, nor to lend his name, skill, influence or countenance to any other persons so engaged, to the detriment of the business so transferred, and that such sale and agreement were not procured by any fraud or misrepresentation, which resulted in any injury to defendant, and that Brunaugh transferred to plaintiff Allen his interest in said property, business, good will and agreement; and that plaintiffs, or Peltz and Brunaugh, paid defendant a valuable consideration therefor; and that defendant, during any part of said five years, did enter into and engage in the manufacture of matches at St. Louis, while plaintiffs were still in said business so purchased of him; or that defendant, at St. Louis, during or at any part of said time, did lend his skill or influence, or name, or countenance to others so engaged, to the detriment of the business so transferred, or injured or destroyed the good will of said business of plaintiffs, then the plaintiffs are entitled to recove in this action. 2d. The court instructs the jury that, if they find from the evidence and the law as given them by this court, that the plaintiffs are entitled to recover in this action, then they are entitled to recover as their damages the actual amount of loss and injury sustained by them, which was the natural, direct and immediate result of the violation of his agreement, if any, by the defendant.

3d. The court instructs the jury that, if they should find from the evidence, that Brunaugh was not the real purchaser, and that his name was used as the ostensible purchaser, while Allen was the real purchaser; yet, if they should further find that defendant received from the plaintiffs, or from Peltz and Brunaugh, all he asked for his said property and business, and the good will, and no injury resulted to defendant from such alleged concealment of the real purchaser, then such facts, or the further fact, if true, that he would not have sold to Allen, is no defense to this action.

To the action of the court in giving the foregoing instructions, the defendant, at the time, excepted.

The court gave the following instructions at the instance of the defendant:

1st. The jury are instructed, that the measure of damages is not the difference of plaintiff's profits, subsequent to the re-entry of defendant into the business, but only so much of this difference as was reaped by defendant, and the proof of how much was thus reaped by defendant devolves on the plaintiff.

2d. The jury are instructed that the evidence, so far as it is contained in the partnership books of plaintiffs, is withdrawn from the jury and to be disregarded...