Scott v. Gillis

• Decision Date: 22 May 1929
• Docket Number: (No. 481.)
• Citation: 148 S.E. 315
• Court: North Carolina Supreme Court
• Parties: SCOTT. v. GILLIS.

148 S.E. 315

(197 N. C. 223)

SCOTT.

v.GILLIS.

(No. 481.)

Supreme Court of North Carolina.

May 22, 1929.

Appeal from Superior Court, Mecklenburg County; A. M. Stack, Judge.

Suit by George G. Scott against E. A. Gillis, trading as E. A. Gillis & Co. From the judgment, defendant appeals. Affirmed.

The complaint filed by the plaintiff alleges substantially the following facts: That the plaintiff and the defendant are at the present time both engaged in the business of certified public accountants, that on the 2d day of May, 1927, the plaintiff and the defendant entered into, an agreement whereby the plaintiff employed the defendant at a salary of $350 per month for the first six months, and then for a salary of $375 per month; that the defendant promised to perform such duties as should be assigned to him by the plaintiff and promised that he would not, fora period of three years after he left the employ of the plaintiff, solicit or accept any business involving the work generally done by certified public accountants from any person, firm, or corporation for whom the defendant performed services while in the employment of the plaintiff; that pursuant to this agreement the defendant remained in the employment of the plaintiff for approximately 19 months; that the plaintiff paid the defendant the $350 per month during the first 6 months and $375 per month after the first 6 months; that on January 1, 1929, the defendant voluntarily left the employment of the plaintiff and has since that time started in the business of a certified public accountant for himself and has in violation of his contract solicited and accepted work from persons, firms, and corporations for whom he performed services while in the employment of the plaintiff; that the defendant has informed the plaintiff that he intends to so solicit and accept. work from any person, firm, or corporation that might wish his services; that the plaintiff has no way of ascertaining the amount of damages the defendant is causing him; that the plaintiff is suffering irreparable injury so that the plaintiff has no adequate remedy except to apply to the court for an injunction restraining the defendant from soliciting or accepting, for a period of three years, business generally done by certified public accountants from any one for whom he performed services while in the employment of the plaintiff.

The matter was heard below on affidavits, and the court rendered the following judgment: "In this cause it is ordered and adjudged, that the restraining order heretofore entered in this action be and the same is continued to the hearing as to parties for whom the defendant performed services on an account while in plaintiff's employment and no further."

The defendant excepted and assigned error to the judgment as signed, and appealed to the Supreme Court.

E. A. Hilker, of Charlotte, for appellant.

F. G. Pierce, of Weldon, and Tillett, Tillett & Kennedy, of Charlotte, for appellee.

CLARKSON, J. This is a civil action brought by plaintiff against defendant, for the purpose of securing a restraining order to the hearing restraining defendant from violating an alleged contract of employment, containing a restrictive clause prohibiting the defendant for a period of three years from soliciting or doing business with any clients of the plaintiff, or any person from whom the defendant, during the plaintiff's employment, performed services.

In Tise v. Whitaker-Harvey, 144 N. C. at pages 510, 511, 57 S. E. 211, the following is stated: "It is the rule with us that in actions of this character, the main purpose of which is to obtain a permanent injunction, if the evidence raises serious question as to the existence of facts which make for plaintiff's right, and sufficient to establish it, that a preliminary restraining order will be continued to the hearing." Cain v. Rouse, 186 N. C. 175, 119 S. E. 13; Camel City Coach Co. V. Griffin, 196 N. C. 559, 146 S. E. 203; New Hope Realty Co. v. Barnes, 197 N. C. 6, 147 S. E. 617. "Ordinarily, the right to injunctive relief to compel the observance of covenants and restraintive clauses, is recognized in this jurisdiction." New Hope Realty Co. v. Barnes, supra.

The record shows no request by the defendant for the court below to find the facts. As there was evidence to support plaintiff's contention, there is a presumption that the court below found the facts to be as alleged in the complaint. In injunctive proceedings, this court has the power to find and review the findings of fact by the court below on appeal, but the burden being on appellant to assign and show error. Where there is a serious conflict over the material questions of fact, the preliminary restraining order will be continued to the hearing.

Plaintiff and defendant are certified public accountants. N. C. Code 1927, Anno. §§ 7024a-7024n, c. 116.

The main question involved in this controversy: Did the court commit error in continuing to the final hearing the order restraining the defendant from violating his contract by soliciting and accepting accounting work from persons, firms, and corporations for whom the defendant performed services while he was in the employment of the plaintiff? We think not.

"In Mar-Hof Co. v. Rosenbacker, 176 N. C. 330 , it is said that although at common law agreements in restraint of trade were held void as being against public policy, this position has been modified until it has come to be the generally accepted principle that agreements in partial restraint of trade will be upheld when they are 'founded on valuable consideration, are reasonably necessary to protect the interests of the parties in whose favor they are imposed, and do not unduly prejudice the public interest.' " Hill v. Davenport, 195 N. C. at page 272...