Roy v. Bolduc.

• Decision Date: 20 October 1943
• Citation: 34 A.2d 479
• Parties: ROY v. BOLDUC.
• Court: Maine Supreme Court

34 A.2d 479

ROY

v.BOLDUC.

Supreme Judicial Court of Maine.

Oct. 20, 1943.

Appeal from Supreme Judicial Court, Kennebec County, in Equity.

Proceeding in equity by Joseph A. Roy against Eugene Bolduc to restrain defendant from acting as a real estate agent in competition with plaintiff by whom he had formerly been employed.From a decree of dismissal, plaintiff appeals.

Appeal dismissed, and decree affirmed.

Before STURGIS, C. J., and THAXTER, MANSER, MURCHIE, and CHAPMAN, JJ.

James L. Boyle and Edmund M. Sweeney, both of Waterville, for plaintiff.

F. Harold Dubord and Jerome G. Daviau, both of Waterville, for defendant.

STURGIS, Chief Justice.

This is a proceeding in equity to restrain a former salesman from competing with the real estate agent by whom he had been employed.Answer having been made and replication filed, on hearing, a decree dismissing the bill with costs was signed and entered.The case comes forward on appeal.

The printed case shows that the plaintiffJoseph A. Roy had for several years been a real estate agent in Waterville, Maine, and has established a substantial and lucrative business.The methods he has used in attaining this success, however, have been neither original nor unique.He is a heavy advertiser but his copy follows forms well known in the business and the mediums he uses are not unusual.His office methods and system are as commonplace.He operates in a field where there are numerous competing real estate agencies and nearly all of his customers are transient, and few, if any, are repeaters.

On December 22, 1939, Joseph A. Roy employed Eugene Bolduc as a real estate salesman agreeing in the written contract the parties executed to pay him fifty per cent of all commissions, fees and charges accruing from sales which he directly made or negotiated, with the right to sell any property listed or being handled through the Waterville office of the employer.The contract was subject to termination on fifteen days' written notice by either party and contained the following provision: “The party of the second part further agrees that upon the termination of this agreement, he shall not act as a real estate agent, broker, salesman, or conduct any business pertaining to, or incidental to the real estate brokerage business for a period of five (5) years from the date of the termination of this agreement in the following towns and cities and their immediate vicinities: Waterville, Fairfield, Skowhegan, Augusta, Pittsfield, Burnham, Benton, Winslow, Hinckley, and Oakland.”

While the employer regularly maintained an office in Waterville and for a time did at Augusta and Skowhegan it is not made to appear that he obtained any business of account from other towns and cities and their immediate vicinities included in this agreement.And it was in Waterville only that the salesman could operate.

For six months the parties acted under their contract and the arrangement proved generally satisfactory.The salesman had the use of a desk in common with other employees in the office in Waterville, had access to files and lists of property being handled there, and earned some commissions.While he was assisted in some instances in closing sales and experience undoubtedly increased his knowledge of the real estate business it does not appear that he received any advice or instructions from his employer beyond those which might be given by any real estate agent exercising reasonable supervision over his salesmen or that he received confidential information or learned trade secrets which he could use to the disadvantage of his employer.

On June 12, 1940 a controversy arose as to whether the salesman was entitled to share in the commission on the sale of land and buildings in Waterville and, not receiving it, he refused to work until it was paid and threatened suit against his employer.Ten days later he was discharged and notice given to the licensing authorities of the termination of his employment.He then opened a real estate office in Waterville on his own account and is still carrying on that business.However, he has not used his employer's lists of customers, solicited their patronage, or acted for them, but, following methods in general use among many if not all real estate agents, is building up a business of his own and, if successful, it will be because of his own efforts, industry and perhaps personality.As one more competitor among several he is, of course, using the knowledge and...