Schlag v. Johnson

• Decision Date: 15 January 1919
• Docket Number: (No. 1447.)
• Citation: 208 S.W. 369
• Parties: SCHLAG v. JOHNSON et al.
• Court: Texas Court of Appeals

Page 369

208 S.W. 369

SCHLAG v. JOHNSON et al.

(No. 1447.)

Court of Civil Appeals of Texas. Amarillo.

January 15, 1919.

Appeal from District Court, Donley County; Hugh L. Umphres, Judge.

Suit by F. A. Johnson and another against D. J. Schlag. From judgment for plaintiffs, defendant appeals. Reversed and remanded.

H. B. White, of Clarendon, for appellant. A. T. Cole, of Clarendon, for appellees.

HUFF, C. J.

This is an appeal by Schlag from a judgment enjoining and directing him to desist from further pursuing a certain business and avocation in the town of Clarendon, Tex., in competition with F. A. Johnson and W. C. Stewart. The case is here alone on pleadings and judgment. F. A. Johnson and W. C. Stewart sued as a partnership under the firm name of Johnson & Stewart, alleging that since the 5th day of April, 1917, they were in the business of plumbing and furnishing and repairing windmills, and in the sale of plumbing wares and parts thereof, in the town of Clarendon, and that they had been engaged in the business for many years; that prior to that date for many years plaintiff Stewart had been in the same business alone, and that for more than a year prior thereto plaintiff Johnson and the defendant Schlag had been in the same business, in the town, as partners, under the firm name of Johnson & Schlag; that on the 5th day of April, 1917, the plaintiffs entered into a partnership, and purchased of the defendant all his interest in the partnership business then and theretofore conducted by the firm of Johnson & Schlag, paying him therefor the sum of $1,482.65, and also as part of the consideration paid them assumed and agreed to pay bills owing by the firm of Johnson & Schlag, and as part of the consideration above paid and assumed by the plaintiff the defendant agreed that he would not again enter into the plumbing business in said town of Clarendon, nor into the windmill business in said town of Clarendon, and, further, he agreed that he would neither sell the wares belonging to either business or trade, and that he would not again work at either trade, and never again in the town directly or indirectly engage in either business. The contract or bill of sale is as follows:

"For and in consideration of the sum of $1,482.65, to me paid by F. A. Johnson and W. C. Stewart, I hereby bargain and sell and by these presents do bargain and sell and deliver to the said F. A. Johnson and W. C. Stewart, all of my interest in and to all of the goods, wares and merchandise of every kind whatever, including all store and office furniture and fixtures belonging to the said Johnson and D. J. Schlag, firm doing business under the firm name of Johnson and D. J. Schlag, and in the C. Benson building on the west side of Kerney street, in block 7, in Clarendon, Texas, also all of the accounts belonging to the firm of Johnson & Schlag, the said F. A. Johnson and W. C. Stewart hereby assuming and agreeing to pay all accounts due by the firm of Johnson & Schlag. It is part of the consideration of this sale, that I, the said D. J. Schlag, hereby obligate myself under proper penalties, that I will not again enter into competition in the plumbing and windmill business or sale or work, either directly or indirectly, in Clarendon, Texas, and I do so contract and agree and acknowledge that a part of the purchase price herein and above set forth is this obligation upon my part not to so enter again into competition with the said parties. The title to the above property, I warrant and defend. Witness my hand at Clarendon, Texas, this April 5, 1917. Witness: G. P. Arington. [Signed] D. J. Schlag."

It is alleged that it was understood the moving cause of the purchase of defendant's interest in the business was the defendant would not enter again into business in said town in competition with them; that defendant knew that plaintiffs had long been in business in the town, and intended so to continue therein, under the partnership mentioned, for profit, and knew that plaintiffs paid the sum to him for the purpose of releasing themselves of his efforts and competition in said town for all time, and, so knowing, executed the writing, by the terms of which he bound himself never again to enter directly or indirectly in said town into the business so purchased. They then allege that he had breached the contract by entering into competition, and threatened to continue to do so, and disregarding his obligations in the contract. They sued also for $600 damages, and sought an injunction, restraining him from pursuing the occupation and business. The petition was not sworn to, and no temporary writ was granted or prayed for. The defendant answered by general and special exceptions. The special exceptions are to the effect that the contract is in violation of the anti-trust and monopoly laws of Texas, and that the contract is void in that the time limit is not to any number of years or space of time, and that the contract is against public policy, in that it is shown that the plumbing business is a useful business in which the public of Clarendon was interested, and that it was unreasonable in its requirements, and in that particular was contrary to the common law. The appellant also answered by general denial, demanding strict proof, and further specially answered:

"(5) While defendant admits that he signed the contract as set out in plaintiffs' petition, yet he would nevertheless show to the court that there was no consideration for that part of said contract in which it was stipulated that he would never again engage in the plumbing business in said town of Clarendon, in competition with plaintiffs; that the consideration mentioned in said contract represents the agreed invoice value of defendant's interest in the stock of plumbing wares, tools, etc., which plaintiffs paid him in exchange for his said interest, and therefore there was and is an utter absence of any consideration whatsoever for that part of said contract just mentioned."

And by further special answer that he and Stewart were the only master plumbers in the town of Clarendon, and that the town was in need of the plumbers, alleging that a great per cent. of the inhabitants of the town were using the sewer and waterworks, which required the business of master plumbers, and that there was sufficient work for them, and he alleged that Stewart was either incompetent or negligent, and that the citizens of the town had to apply to outside sources for competent plumbers, etc. He alleges the war brought about conditions making it hard to obtain plumbers, and that the contract was unreasonable in restricting the town of Clarendon to one master plumber, etc. The plaintiffs, by supplemental petition, filed August 3, 1918, alleges that they were entitled to the injunction prayed for in their original petition, on the answer filed therein during the month of January, 1918, and one filed July 29, 1918, and, further, they waived and disclaimed by their supplement all pecuniary damages "herein that action may be had hereon." The judgment is dated August 3, 1918, reciting that plaintiff answered ready for trial, but defendant announced not ready, and presented his motion for continuance, which was overruled. The exceptions presented by appellant were also overruled, and the judgment then recites:

"Whereupon, no further pleas and demurrers and motions of defendant being urged, the cause proceeded to trial, and the pleadings were read to the court, and the court being of the opinion that the admissions contained in paragraph 5 of defendant's answer authorized and requires that the relief prayed for in plaintiff's petition should be granted. Plaintiffs having waived all claims for damages, it is therefore ordered and...