Rosenstein v. Zentz

Decision Date13 November 1912
Citation85 A. 675,118 Md. 564
PartiesROSENSTEIN et al. v. ZENTZ.
CourtMaryland Court of Appeals

Appeal from Circuit Court of Baltimore City; H. Arthur Stump, Judge.

Bill by Jesse Rosenstein and Isidor Rosenstein, trading as the Rosenstein Piano Company, against Charles F. Zentz. From a decree for defendant, plaintiffs appeal. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, BURKE, THOMAS PATTISON, and STOCKBRIDGE, JJ.

Augustus C. Binswanger, of Baltimore, for appellants.

Israel B. Brodie, of Baltimore, for appellee.

PATTISON J.

The appellee, defendant below, entered into a written agreement with the appellants, dated March 11, 1912, by which he was to enter into the services of the appellants, who were engaged in the sale of pianos and other musical instruments, for the period of one year from the date of the agreement. His employment, as expressed in the contract, was to embrace the states of Maryland and Virginia and the District of Columbia and his duties were those of salesman, collector, and general utility man, and he was to devote the whole of his time to the performance of such duties. In the agreement is found the negative covenant that "he will not enter into any contract or employment or be in any way interested or connected with any one, other than the said merchants, in said territory, during said period of one year, in similar employment," etc. The contract or agreement contained the further provision that "the services of said salesman are engaged during the working hours of the day and when necessary during the night." His compensation named therein was $15 per week, payable weekly, from the commencement of his services, accounting from March 16, 1912.

The bill of the appellants, filed on March 13, 1912, charges that the said defendant subsequent to 2 o'clock on March 9 1912, the time when the contract between the plaintiffs and defendant is said by the plaintiffs to have been executed, entered into a written contract of employment with the Hub Piano Company, and at the time of entering into this contract, and prior to the signing of it, the contract previously made with them by the defendant was exhibited to the members of the firm of the Hub Piano Company. And they further charge that at the time of the filing of their bill the defendant was in the employ of the Hub Piano Company in breach of the covenants contained in their written contract with him and "in fraud of their rights" thereunder. The bill further discloses that prior to the 15th day of February, 1912, the plaintiffs, with Rachel Rosenstein and the members of the firm thereafter composing the firm of the Hub Piano Company, were conducting department stores in the city of Baltimore under the firm name of L. Rosenstein & Sons, and that the plaintiffs with the members of the firm of the Hub Piano Company, as thereafter formed, also conducted a piano and musical instruments business in said city under the firm name of Rosenstein & Bros. The differences and disagreements as to the conduct of the business arose among the different members of the firms as they then existed. These differences and disagreements were submitted to arbitration, and by the award it was provided that the piano business and piano accounts of the firm were to be sold and disposed of to such member or members of the firms who would pay the most therefor, and, when sold, the purchaser or purchasers should be entitled to the good will of said firms in so far as the same related to the piano business, and the unsuccessful bidders and members of the old firm not among the purchasers were not to deal or attempt to deal with any of the existing customers of the said firms, either directly or indirectly, nor were they in any manner to seek to supplant with other musical instruments the instruments at that time held by the customers of the old firms. Under these provisions of the award, the plaintiffs became the purchasers of the piano business and the piano accounts of said firm. The defendant was in the employ of the old firm at the time of its dissolution, and, as alleged in the bill, "had the particular run of a class of trade in the employ of the said two firms."

The prayer of the bill asks that the defendant be restrained from engaging, either directly or indirectly, at any time within one year from March 11, 1912, within the territory heretofore mentioned, as salesman, collector, and general utility man in and about the piano or other musical instrument business. A preliminary injunction was issued as prayed, and a demurrer to the bill was thereafter filed. By an order of court passed on the 8th day of April, 1912, the preliminary injunction was dissolved, the demurrer to the bill sustained, and the bill dismissed. It is from this order that this appeal is taken.

We have been referred to no case in Maryland, nor have we been able to find one, where the law applicable to the facts of this case has been stated. The first case before this court where an attempt was made to restrain an employé, under a contract for personal services, from rendering service to another in violation of such contract, was the case of Burton v. Marshall, 4 Gill, 487, 45 Am. Dec. 171. In that case Charles Burke made a contract for and on behalf of his wife that she should perform at the Holliday Street Theater, Baltimore, Md., of which the appellee was the manager, for the period of time and at the salary therein named. There was no negative covenant in the contract that she should not during that time perform at any other theater. As alleged in the bill of the appellee, in violation of her contract, the husband refused to permit his wife to perform at said theater, and engaged her services to a rival company, of which Burton was the manager. The bill also discloses that the complainant had brought an action at law to recover damages because of the breach of the contract. The prayer of the bill asked, among other things, that Margaret Burke be restrained from performing as an actress in any other theatrical corps during the continuance of said contract, etc. This court in that case held that the injunction should have been refused because oppressive when considered in connection with the suit at law then pending, saying: "Equity will not listen to a complainant who thus presents himself for relief, until he makes his election in which court he desires to proceed in pursuit of his rights, and has dismissed, or agreed to dismiss, his proceedings in the other." This court in its opinion in that case referred to the cases of Kemble v. Kean, 6 Simons, 333, and Kimberley v. Jennings, 6 Simons, 340. In those cases the contracts were for personal services, and each contained an affirmative and a negative covenant. The court was asked to restrain the employé from rendering services to one other than the plaintiff in violation of his contract with the plaintiff. The court there held that it could not enforce the positive part of the contract, and therefore it would not restrain by injunction a breach of the negative part. The court in its reference to these cases did not approve or disapprove of the principle of law laid down in them, but simply said: "If these cases are to be regarded as of any authority, upon what principle could the complainant, under a contract affirmative in all its provisions, and the execution of which could not be specifically enforced, ask a court of equity, in effect, to ingraft upon it a negative stipulation, the breach whereof was to be restrained by injunction, as if it had formed a part of the written agreement of the parties?"

The next case we find in this court involving the right under a contract for personal services to restrain the violation of the covenants therein is that of Hahn v. Concordia Society, 42 Md. 460, which, unlike the case of Burton v Marshall, contained an express negative stipulation that the defendant would not do that which the injunction prohibited him from doing. By the agreement in the case of Hahn v. Concordia the appellees engaged the defendant, an actor, for the time therein mentioned, at a monthly salary, and he was not during the time for which he was employed to act in any other theater without the express permission, in writing, from the appellees. The agreement also contained the stipulation to the effect that, if the defendant should break it, that he should pay to the appellees a conventional fine of $200, which sum was to be forfeited in any violation of the contract, and required no legal proceedings for its execution. The court, after briefly alluding to the decision in the case of Kemble v. Kean, referred to and quoted from the case of Lumley v. Wagner, 1 De G. Mac. & G. 604, which expressly overrules the cases of Kemble v. Kean and Kimberley v. Jennings, and which was decided after the case of Burton v. Marshall. This court in speaking of the case of Lumley v. Wagner said: "By this decision we understand the law to be now settled in England that, though a court of equity cannot enforce the specific performance of a contract for the rendition of mere personal services, yet it will not hesitate to interfere by injunction to prevent the violation of a negative stipulation, where the terms and nature of the contract are similar to those in that case. In this country, the authorities, and especially those in ...

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4 cases
  • Tolman Laundry, Inc. v. Walker
    • United States
    • Maryland Court of Appeals
    • 11 Noviembre 1936
    ... ... 155 Md. 30, 36, 141 A. 440. Compare Jones Cold Store Door ... Co. v. Jones, 108 Md. 439, 445, 70 A. 88, 129 Am.St.Rep ... 446; Rosenstein v. Zentz, 118 Md. 564, 85 A. 675, 44 ... L.R.A. (N.S.) 63 ...          Here ... the nature of employer's business or trade renders it ... ...
  • Tawney v. Mutual System of Md., Inc.
    • United States
    • Maryland Court of Appeals
    • 17 Mayo 1946
    ...he had covered, for one year, was held unenforcible. With this background, we turn to the Maryland authorities. In Rosenstein v. Zentz, 118 Md. 564, 85 A. 675, 44 L.R.A., Deuerling v. City Baking Co., Md. 280, 141 A. 542, 544, 67 A.L.R. 993, a covenant by a driver-salesman for a bakery comp......
  • Griffin v. Guy
    • United States
    • Maryland Court of Appeals
    • 25 Mayo 1937
    ... ... Lumm, 155 Md. 30, 36, 141 A. 440 ... Compare Jones Cold Store Door Co. v. Jones, 108 Md ... 439, 445, 70 A. 88, 129 Am.St.Rep. 446; Rosenstein v. Zentz, ... 118 Md. 564, 85 A. 675, 44 L.R.A. (N.S.) 63." ... [192 A. 361] ... It is established that contracts in restraint of trade may be ... ...
  • Fulton Grand Laundry Co. v. Johnson
    • United States
    • Maryland Court of Appeals
    • 25 Enero 1922
    ... ... business, such protection is necessary, it can easily be ... secured by such contracts ...          While ... the case of Rosenstein v. Zentz, 118 Md. 564, 85 A ... 675, 44 L. R. A. (N. S.) 63, was decided on other grounds and ... on different state of facts, what was said in ... ...

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