Prentice v. Rowe
Decision Date | 02 May 1959 |
Docket Number | No. 7734,7734 |
Citation | 324 S.W.2d 457 |
Parties | J. R. PRENTICE, d/b/a American Breeders Service and Don L. Hoyt, d/b/a Ozark Proved Sire Service, Plaintiffs-Respondents, v. W. E. ROWE, Defendant-Appellant. |
Court | Missouri Court of Appeals |
J. A. Appelquist, Mount Vernon, Bert Hurn, Neosho, Jack L. Hobson, of Mount Vernon, for defendant-appellant.
Douglas & Douglas, Neosho, Hardy Croxton, Rogers, Ark., for plaintiffs-respondents.
Defendant, W. E. Rowe, appeals from a decree enjoining him 'from articially inseminating cattle, either directly or indirectly, in McDonald County, Missouri for a period of two years from November 21, 1957.' About May 1948, Rowe (who theretofore had been a dairy farmer in McDonald County for fifteen years) began to work as an artificial inseminator of cattle--a calling frequently identified by the less discriminating and descriptive, but more dignified and distinguished, title of 'technician.' For a time, Rowe 'worked on a commission' for Harry Rollins, a 'pioneer of the artificial insemination business in Southwest Missouri,' who did business as the Dairy Breeding Association of Carthage, Missouri. When Rollins sold his bulls in November 1951, to J. R. Prentice of Chicago, who does business as American Breeders Service (hereinafter referred to as ABS), Rowe entered the employ of ABS under a written 'Technician's Employment Contract' which clearly and plainly established an employer-employee relationship between ABS and Rowe and spelled out the rights and obligations of the respective parties. Rowe's employment was to 'inseminate all cows presented for service' in the stipulated 'service area' of McDonald County, Missouri, 'with semen furnished and at fees established by the employer.'
Rowe continued in the employ of ABS until May 1, 1957, under similar written contracts. Each such contract provided that: And, each such contract contained a restrictive covenant in substantially the following language quoted from paragraph 9 of the last 'Technician's Employment Contract' dated January 11, 1955 (hereinafter referred to as the employment contract): 'While employed under this contract, and any extension or renewal thereof, and as long as the Employer carries on the business of artificial insemination of cattle during the two years after the termination of such employment, the Technician shall not * * *, in the service area (McDonald County, Missouri), artificially inseminate or take or solicit orders for the artificial insemination of cattle, with semen other than such as shall be furnished to the Technician by or through or with the permission of the Employer.'
In May 1957, ABS sold to Don L. Hoyt of Springdale, Arkansas, 'all right, title and interest of ABS in and to ABS's retail artificial inseminating business' in seven Missouri counties, including McDonald County, and Hoyt became the 'distributor' for ABS semen in those counties. Under date of May 1, 1957, Hoyt (d/b/a Ozark Proved Sire Service) as 'distributor' and Rowe as 'purchaser' entered into a written 'Contract for the Sale of Fresh Semen' (hereinafter referred to as the fresh semen sales contract). In this contract, the parties agreed, among other things, 'that the purchaser (Rowe) is an independent contractor and the distributor (Hoyt) shall not direct, guide and supervise the manner in which the purchaser does his work' and 'that the purchaser has no vested property right under this contract, but only a franchise to sell American Breeders Service semen in the above described territory (McDonald County, Missouri) for so long as this contract is in effect.' The fresh semen sales contract contained two restrictive covenants. The first was that 'the purchaser (Rowe) during the term of this contract, and for a period of two years after the termination of such agreement shall not (either on his own account or of a partner, representative, or otherwise) inseminate cows with semen, either fresh or frozen, other than that furnished by distributor (Hoyt),' and that 'after the termination of this agreement, purchaser shall not have the right to inseminate any cows serviced under this contract.' The second was contained in another paragraph which embodied in the fresh semen sales contract by reference the restrictive covenant hereinbefore quoted from paragraph 9 of the employment contract of January 11, 1955. The fresh semen sales contract was 'approved' in writing by ABS, although ABS was not a party thereto.
On October 8, 1957, Rowe signed a written 'Resignation' in which he tendered 'my resignation of employment, either as servant or independent contractor, to the American Breeders Service and the Ozark Proved Sire Service Co.,' effective '30 days from date.' The testimony concerning execution of this 'Resignation' was in sharp and irreconcilable conflict. Hoyt and Divine (a field representative of ABS) testified that Rowe was 'very bitter' toward ABS and 'wanted to resign,' and that he had signed the 'Resignation' notwithstanding the fact that they had 'begged Mr. Rowe * * * an hour or so not to resign.' On the other hand, Rowe said that he did not read the 'Resignation,' and that he signed it because Hoyt and Divine requested and, in fact, 'forced' him to do so, although (at another point in his testimony) Rowe conceded that Hoyt and Divine had 'encouraged' him to continue 'under the terms of the contract.' In any event, the 'Resignation' appears to have been an outgrowth of what Rowe referred to as 'some difficulty' and 'some disagreements,' wholly unexplained in the record except for the suggestion inherent in Rowe's statement that his objection to continuing the sale of ABS semen was that ABS wanted to raise the breeding fee from $6 to $7.
On October 16, 1957, Ozark Proved Sire Service Company of Springdale (an Arkansas corporation controlled by Hoyt) as distributor and Rowe as purchaser executed another 'Contract for the Purchase and Sale of American Breeders Service Proved Sire Semen' which was to have become effective 'at day of delivery of frozen semen.' This contract (hereinafter referred to as the frozen semen sales contract) provided, as had the fresh semen sales contract of May 1, 1957, that 'the purchaser is an independent contractor' and that he had 'only a franchise to sell American Breeders Service semen' in McDonald County. Notwithstanding the fact that the frozen semen sales contract by its plain terms never became effective because no frozen semen was delivered to Rowe (although all interested parties apparently contemplated as early as May 1957, that a change from fresh to frozen semen would be made when the latter became available), Hoyt, as President of Ozark Proved Sire Service Company, gave to Rowe on October 21, 1957, formal written 'Notice of Termination of Contract' in which it was stated that 'pursuant to franchise contract dated Oct. 16, 1957 * * * 30 days notice is hereby given * * * that aforesaid contract shall be cancelled and set aside, and that any employment status, contractural (sic) or otherwise, shall be cancelled and held for naught as between the parties hereto.' (All emphasis herein is ours.) And, notwithstanding the foregoing notice of October 21, 1957, and the fact that the frozen semen sales contract was the only contract bearing the date of October 16, 1957, Hoyt wrote Rowe on November 18, 1957, that 'the termination of a certain contract for sale of fresh semen dated October 16, 1957, does not in any way effect (sic) our contractural (sic) relationship of another contract for sale of frozen semen dated October 16, 1957.' And, notwithstanding Rowe's 'Resignation' which was 'accepted' by Hoyt on October 8, 1957 (when the fresh semen sales contract of May 1, 1957, was the only contract between Hoyt and Rowe), Rowe continued to purchase fresh ABS semen from Hoyt until November 20, 1957, and Hoyt continued to ship to Rowe for five or six days after that date until it became apparent that Rowe was not using the ABS semen sent to him.
Proceeding on the premise that he 'got fired' by ABS or Hoyt and 'had to make a living,' Rowe entered into a 'Dealer's Contract' with Eastern Iowa Breeders on November 21, 1957; and, in the brief span of eighteen days before a temporary injunction was granted in this case on December 9, 1957, Rowe serviced with Eastern Iowa semen one hundred cows in McDonald County, many of whom previously had been serviced by him with ABS semen. The undisputed testimony in this case was that, within a few days after November 20, 1957, Hoyt's individual distributorship for ABS semen was terminated, and ABS 'took over' McDonald County and employed as a technician therein one Gresham who was still working as an employee of ABS in McDonald County at the time of trial.
Plaintiffs, ABS and Hoyt, predicate their alleged right to injunctive relief upon defendant Rowe's violation of the restrictive covenants in the fresh semen sales contract of May 1, 1957. Although we have seined the seas of authority without netting any such curious concatenation of contracts, covenants, conflicts and confusion as that washed ashore in this case, certainly there is no dearth of legal literature dealing with restrictive covenants, as is emphasized and demonstrated in Arthur Murray Dance Studios of Cleveland v. Witter, Ohio Com.Pl., 105 N.E.2d 685--a studious and scholarly exposition sharply contrasting with the frequently shallow and superficial, sometimes slipshod and slovenly, treatment accorded important questions by counsel and courts alike. Stated in general terms, the law now is that a covenant restraining an employee, upon...
To continue reading
Request your trial-
Woody v. Sterling Aluminum Products, Inc.
... ... Prentice v. Rowe, Mo.App., 324 S.W.2d 457, 465. Termination allowances were provided for as a means of at least partially compensating those employees who, by ... ...
-
State ex rel. Sisson v. Felker
... ... Supreme Court Rule 1.08, subd. (a)(3) and (d), 42 V.A.M.S.*; Prentice v. Rowe, Mo.App., 324 S.W.2d 457, 464(10) and cases there cllected.* ... Felker's fourth point is that 'the peremptory writ herein ... ...
-
Hallahan, Matter of
...Such covenants have been enforced in Missouri courts even in the absence of any improper use of customer lists. See Prentice v. Rowe, 324 S.W.2d 457, 462 (Mo.Ct.App.1959) (employee can be held liable for violation of reasonable restrictive covenant aimed at discouraging attempts by former e......
-
Reddi-Wip, Inc. v. Lemay Valve Co.
... ... Mallinckrodt Chemical Works v. Nemnich, 169 Mo. 388, 69 S.W. 355, affirming 83 Mo.App. 6; Prentice v. Rowe, Mo.App., 324 S.W.2d 457; Renwood Food Products v. Schaefer, 240 Mo.App. 939, 223 S.W.2d 144. It would likewise appear to conflict with our ... ...