Prentice v. Williams
| Decision Date | 11 May 1959 |
| Docket Number | No. 7731,7731 |
| Citation | 324 S.W.2d 466 |
| Parties | J. R. PRENTICE, d/b/a American Breeders Service and Don L. Hoyt, d/b/a Ozark Proved Sire Service, Plaintiffs-Respondents, v. Ralph F. WILLIAMS, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
J. A. Appelquist, Mount Vernon, Bert Hurn, Neosho, for defendant-appellant.
Douglas & Douglas, Neosho, Hardy Croxton, Rogers, Ark., for plaintiffs-respondents.
Defendant, Ralph F. Williams, appeals from a decree finding the issues in favor of plaintiff, J. R. Prentice d/b/a American Breeders Service (hereinafter referred to as ABS), and against defendant, and enjoining defendant 'from artificially inseminating cattle in Lawrence County, Missouri for a period of two years from May 1, 1957.' The decree of the trial chancellor denied injunctive relief to the other plaintiff, Don L. Hoyt d/b/a Ozark Proved Sire Service; and, since Hoyt has not appealed, we are not concerned with the propriety of the finding against him. Section 512.160(2), RSMo 1949, V.A.M.S.; Missouri-Kansas-Texas R. Co. v. Freer, Mo.App., 321 S.W.2d 731, 741(11), and cases there cited.
In the Fall of 1948, Williams went to work for Harry Rollins of Carthage, Missouri, a pioneer in the artificial insemination business in Southwest Missouri; and, when Rollins sold his bulls to ABS, Williams entered the employ of ABS under a written 'Technician's Employment Contract' dated October 19, 1951, which provided that his employment was to 'inseminate all cows presented for service in the service area,' loosely described as 'Central & So. Lawrence Co.,' with semen furnished and at fees established by ABS. Williams continued in the employ of ABS under similar written contracts until May 1, 1957. In the last such 'Technician's Employment Contract' dated January 25, 1955 (hereinafter referred to as the employment contract), the service area was described as 'Lawrence county, and Southern Dade county, Missouri'; and, paragraph 9 of the employment contract contained a restrictive covenant (as had all prior contracts between ABS and Williams) that: 'While employed under this contract, and any extension or renewal thereof, and as long as the Employer (ABS) carries on the business of artificial insemination of cattle during the two years after the termination of such employment, the Technician (Williams) shall not * * *, in the service area, 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 Lawrence County, and Hoyt became the 'distributor' for ABS semen in those counties. Under date of May 1, 1957, Hoyt as 'distributor' and Williams 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 (Williams) 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 for so long as this contract is in effect.' The description of the territory in the fresh semen sales contract, to-wit, 'Lawrence Co Mo, less a portion in SW corner, less a strip on east side,' was such that it would have been impossible, from the description itself, to have defined and delimited the territory in which Williams was granted 'a franchise to sell' ABS semen. Compare Athletic Tea Co. v. Cole, Mo.App., 16 S.W.2d 735, 736(3).
The fresh semen sales contract contained two restrictive covenants. The first was that 'the purchaser (Williams) 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 25, 1955. Although the fresh semen sales contract was 'approved' by ABS, ABS was not a party thereto.
Under date of September 10, 1957, Ozark Proved Sire Service Company of Springdale (an Arkansas corporation controlled by Hoyt) as distributor and Williams as purchaser executed another 'Contract for the Purchase and Sale of American Breeder Service Proved Sire Semen' which was to have become effective 'at time of frozen semen delivery.' Since no frozen semen was ever delivered to Williams, this contract by its plain terms never became effective; and, upon trial of the case, Hoyt readily so agreed. On October 21, 1957, Hoyt as 'Pres., Ozark Proved Sire Service Company' (the Arkansas corporation) served on Williams a written 'Notice of Termination of Contract,' in which it was stated that 'pursuant to franchise contract dated May 1, 1957 between Ozark Proved Sire Service Co. and Ralph Williams, that (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.' Treating this as a termination of all contractual relationships and obligations, Williams entered into a 'Dealer's Contract' with Eastern Iowa Breeders on November 21, 1957; and, during the period from that date to the granting of a temporary injunction herein on January 3, 1958, Williams serviced with Eastern Iowa semen about three hundred cows in Lawrence County, some of whom previously had been serviced by him with ABS semen.
Thus far, the facts in the instant case have tracked closely those in the companion case of Prentice v. Rowe, Mo.App., 324 S.W.2d 457, but we now reach a point of wide and (we think) significant factual divergence. As pointed out in the Rowe opinion, supra, the undisputed testimony in that case was that, within a few days after November 20, 1957, Hoyt's individual distributorship for ABS semen was terminated, and ABS 'took over' the service area specifically described in the contracts there involved, to-wit, McDonald County, Missouri, and hired a technician therein who was still working as an employee of ABS at the time of trial. There is no similar testimony in the instant record, which we must take as it comes to us. Bennett v. Wood, Mo., 239 S.W.2d 325, 327(2); Farmer v. Taylor, Mo.App., 301 S.W.2d 429, 433.
In this case, Hoyt testified that, from and after June 3, 1957, the date on which Ozark Proved Sire Service Company (hereinafter referred to as the Arkansas corporation) was formed, the Arkansas corporation purchased semen from ABS and resold it to Williams and others; and, when Williams' counsel put this 'question' to Hoyt on cross-examination, 'it is a correct statement as a matter of fact that the Ozark Proved Sire Service Company was in the insemination business from and after June 3, in Lawrence County up to the present time,' the unequivocal reply was 'yes.' (All emphasis herein is ours.) Witness Divine, 'extension representative' of ABS and the only employee of ABS who testified, readily agreed with Williams' counsel that Lawrence County (and other territory) 'had been sold to Mr. Hoyt' in May 1957; and, in response to the direct inquiry whether 'ABS sold their right, title and interest in the insemination business to Mr. Hoyt,' Divine gave the unqualified answer, 'yes.' Divine...
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