Roessler v. Burwell

• Decision Date: 05 December 1934
• Citation: 176 A. 126,119 Conn. 289
• Court: Connecticut Supreme Court
• Parties: ROESSLER v. BURWELL.

176 A. 126

119 Conn. 289

ROESSLER v. BURWELL.

Supreme Court of Errors of Connecticut.

December 5, 1934

Appeal from Court of Common Pleas Court, New Haven Country; Robert L. Munger, Judge.

Action by Carl Roessler v. Wayne Burwell for an injunction restraining the defendant from soliciting the plaintiff's customers, brought to the court of common pleas for New Haven county and tried to the court. Judgment for the plaintiff and appeal by the defendant.

No error.

Maxwell H. Goldstein and T. Holmes Bracken, both of New Haven, for appellant.

A Robert Levett, William B. Turley, and David M. Reilly, all of New Haven, for appellee.

Argued before MALTBIE, C.J., and HAINES, BANKS, AVERY, and DICKENSON, JJ.

MALTBIE, Chief Justice.

The basic facts in this case, as found by the trial court, with the addition of certain others as to which there is no dispute, are as follows: The plaintiff, since some time previous to 1926, has been engaged in the business of manufacturing delicatessen products and selling them to retail stores in New Haven county and its vicinity. In 1926 the defendant entered his employment as a salesman. The plaintiff went personally, with the defendant, to the places of business of his customers, and introduced the defendant as his salesman. From that time until October 10, 1929, the defendant continued in the plaintiff's employment without any written agreement, working for a weekly salary. On that day the parties entered into a written agreement. This recited that the employer was the manufacturer and distributor of delicatessen products in the towns of New Haven, West Haven, and other cities and towns in this state and that he had in his employment and desired to continue to employ ___, to call upon his present customers and to procure new customers and business in that region, and that the employee desired to continue in the employment under the conditions fixed in the agreement. It then went on to provide, among other things, that the employer agreed to employ the defendant as salesman " indefinitely," and the employee accepted the employment, to be compensated by " such weekly wages as may be mutually agreed upon between the parties from time to time, not inconsistent with this agreement" ; that, in the event the employer should discharge or discontinue the services of the employee for any cause whatsoever, the employee would not for a period of one year after severing his connection with the employer, call upon, or directly or indirectly, in any capacity, solicit the same business from, any of the customers of the employer in the locality specified, whom he had called upon during his term of service with the employer; and that, should the employee violate any of the provisions of the agreement, the employer should be entitled to relief by injunction or other process of law, to restrain the defendant from interfering with or soliciting any of such customers.

The defendant thereupon began work for the plaintiff under the terms of the agreement and continued until he voluntarily left his employment in January, 1934. During this time different amounts were paid to the defendant as weekly wages, and were voluntarily accepted by him without objection or protest. In November, 1932, and thereafter, due to conditions which affected the plaintiff's business, he reduced the defendant's salary until, when the defendant left, he was receiving $25 a week. In 1932 and 1933 there were times when the depression in the plaintiff's business made it impossible for him to give the defendant a full week's employment as salesman, and he requested the defendant to perform work of a different character. Upon all these occasions the defendant performed the work voluntarily and without objection or protest. On January 13, 1934, the defendant left the employ of the plaintiff for the purpose of entering into business in his own behalf, in the sale of a similar line of products to that manufactured and sold by the plaintiff. Claiming that he was not bound by the terms of the agreement, he began to solicit orders for products similar to those manufactured and sold by the plaintiff, from the latter's customers, whose names and places of business he had learned during his employment with the plaintiff. Because of the friendly relationship between the defendant and these customers, some of them gave him orders for goods, with the result that they naturally would buy less of the plaintiff's products. The plaintiff brought this action for the purpose of securing an injunction restraining the defendant from soliciting, canvassing, or interfering in any way with the plaintiff's customers. The trial court found the issues in his favor and caused judgment to enter restraining the defendant from directly or indirectly calling upon, soliciting, diverting, or attempting to solicit, divert, or take away certain customers of the plaintiff, whose names are listed in the judgment file, and from that judgment the defendant has appealed.

The issue raised by the appeal particularly stressed by the appellant is that the agreement of October, 1929, was so vague and uncertain in its terms as not to constitute a contract, and therefore furnished no basis for the injunctive relief sought. It is an established principle of the law of contracts that an agreement too indefinite and vague for enforcement at its inception may be made definite by entire or partial performance, and, even though originally unenforceable, may thereby become binding. Palumbo v Fuller Co., 99 Conn. 353, 362, 122 A. 63; El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 184, 189, 131 S.W. 460; Atlantic Pebble Co. v. Lehigh Valley R. Co., 89 N. J. Law, 336, 343, 98 A. 410; 1 Williston, Contracts, p. 82; 1 Page, Contracts, § 103. While it does not appear from the finding...