Pope-Turnbo v. Bedford

• Decision Date: 05 April 1910
• Citation: 127 S.W. 426,147 Mo. App. 692
• Parties: POPE-TURNBO v. BEDFORD.
• Court: Missouri Court of Appeals

127 S.W. 426

147 Mo. App. 692

POPE-TURNBO v. BEDFORD.

St. Louis Court of Appeals. Missouri.

April 5, 1910.

1. MONOPOLIES (§ 12)—CONTRACTS (§ 116)— VALIDITY OF AGREEMENTS.

Defendant agreed absolutely not to use any hair remedies except plaintiff's in treating patients by a common method of cleaning the hair to which plaintiff had no exclusive right. Rev. St. 1899, § 8966 (Ann. St. 1906, p. 4152), makes all agreements tending to lessen full and free competition in the sale of any commodity, or to sell a particular commodity and not to sell any competing commodity, against public policy and void. Held, that the agreement was unreasonable and void at common law, as well as under the statute, as fostering a monopoly.

2. GOOD WILL (§ 1)—NATURE OF "PROPERTY."

The good will of preparations used in treating the hair and system of treatment is a species of "property."

3. INJUNCTION (§ 58)—BREACH OF NEGATIVE COVENANTS.

Plaintiff, upon agreeing to teach defendant her method of hair treatment, could stipulate that defendant should not mention having learned plaintiff's method of treatment, except in connection with the use of her preparations, in order to prevent defendant from misleading the public to believe that she was using plaintiff's preparations, when she was in fact using inferior preparations, and could enjoin defendant from advertising herself as plaintiff's pupil after she had ceased to use plaintiff's remedies in treating the hair, under the rule authorizing injunctions to restrain the breach of a negative covenant in a contract.

Appeal from St. Louis Circuit Court; Jas. E. Withrow, Judge.

Suit by Annie M. Pope-Turnbo against Maggie Bedford. From a judgment dismissing the bill, complainant appeals. Reversed and remanded, with directions to enter judgment as stated.

Hugh K. Wagner and M. Hartmann, for appellant. Howard Sidener and R. O. Meigs, for respondent.

GOODE, J.

These parties entered into a contract, which we transcribe: "This contract made and entered into this 29th day of August, 1907, by and between Annie M. Pope of the city of St. Louis, state of Missouri, party of the first part, and Mrs. Maggie Bedford, of 3964A Finney avenue, party of the second part, witnesseth that: Whereas, said Annie M. Pope has knowledge of a certain system or method of treating the scalp and hair, having for its object the production or increase of a growth of hair, which system of treatment said party of the first part has practiced on large numbers of persons for years, and for use in which said party of the first part has adopted certain preparations known as `Poro' Temple Grower, `Pope' Hair Grower, `Poro' Pressing Oil, etc., which said preparations the party of the first part has found by experience to be especially suitable for and adapted to her aforesaid system or method of treatment of the scalp and hair: Now, therefore, in consideration of the said party of the first part instructing said party of the second part in said system or method of treatment of the scalp and hair and in the use and application of said `Poro' remedies and hair applications, said party of the second part hereby agrees as follows: (1) That the party of the second part will pay to the party of the first part the sum of twenty-five dollars ($25). (2) That the party of the second part will not use in the practice of said system or method of scalp or hair treatment so taught the party of the second part by the party of the first part as aforesaid any temple grower, hair grower, pressing oil, or other application or preparation except the above mentioned `Poro' preparations of the party of the first part, and said party of the second part agrees not to mention having learned the system or method of treatment of the scalp and hair of the party of the first part except in connection with the use by the party of the second part of said `Poro' preparations of the party of the first part and not in connection with the use of any other hair or scalp applications or treatments; and said party of the second part furthermore agrees that if the party of the second part teaches said system or method of hair and scalp treatment of the party of the first part to any one else, it shall be only after having first obligated any such pupil by a contract similar to the one contained in this paragraph not to practice or mention said treatment of the party of the first part without using said `Poro' preparations of the party of the first part. In testimony whereof the parties hereto have hereunto affixed their signatures and seals at St. Louis, Missouri, the day and year first aforesaid. Mrs. Maggie Bedford. [Seal.] Annie M. Pope. [Seal.] Witnesses: Lena Love. Mrs. Octavia A. Rainey."

Plaintiff's name was affixed to the contract as Annie M. Pope; but she testified that since the date of the instrument she had been divorced, and resumed, in connection with her name by marriage, her maiden name, Turnbo, and now calls herself Annie M. Pope-Turnbo. Plaintiff taught her system of hair and scalp treatment to defendant, the tuition extending through about two weeks, and defendant paid a fee of $25. The process of treatment was thus described by plaintiff: "In the beginning you take the hair down and brush it. Then we dry clean it. This process means to take the dandruff off the scalp with a brush, then apply soap, massage the hair, then wash the soap out and dry the hair, and after that apply Poro Pressing Oil, then when we finish the treatment, we apply Poro Hair Grower to the entire scalp with the use of Poro Temple Grower."

Defendant described plaintiff's process about as the latter did, saying it consisted of nothing but taking a comb, scraping the dandruff off the scalp, washing the hair, and pressing it, a process defendant said she had been using four or five years previous to the date of the contract; that if a customer came to her for treatment she scraped the dandruff out, working with a comb, washed the hair and scalp in a tub of water, pressed the hair out, and put a little oil on it. Defendant testified she applied to plaintiff to be taught the latter's method, paid $25, and afterwards the contract was presented to her, and she signed it without reading, but would not have signed if she had known it bound her to use Poro preparations forever. After receiving a diploma from plaintiff, defendant began to practice at her own home No. 3964A Finney avenue, St. Louis; plaintiff's place of business being No. 2223 Market street. Defendant must have commenced to practice in September, 1907, and she testified she used plaintiff's Poro decoctions until March, 1908, then ceased to use them, and instead used her own preparation, known as "Bedford's Wonderful Hair Grower." On March 21, 1907, defendant inserted this advertisement in a newspaper published in St. Louis and admitted to have a wide circulation: "Mrs. Bedford, 3964 Finney avenue, is now in business for herself. She was formerly a pupil of Mrs. A. M. Pope, née Turnbo, and thoroughly understands her business and guarantees all work. She would be pleased to have you give her a call. Telephone, Lindell 2646."

Plaintiff testified her process of treatment of the hair and scalp was a secret one for which she had built up a reputation, and it was becoming famous; that plaintiff was known in St. Louis and over the country to cause hair to grow rapidly on people's heads; that the secret of the treatment consisted in the application of the Poro remedies to the hair and scalp. She said these remedies produced a growth of hair, as had been proved in many instances; that, when defendant applied for instruction, defendant said she was using a treatment different from plaintiff's, but wanted to learn the latter's so defendant could "establish herself in business on the same basis." There was testimony to prove the treatment administered by defendant, in the course of which her remedies were used on...