State ex rel. Schoenbacher v. Kelly

• Decision Date: 18 October 1966
• Docket Number: No. 32283,No. 7,C,7,32283
• Citation: 408 S.W.2d 383
• Parties: STATE of Missouri ex rel. Antoine SCHOENBACHER and Karl Ederer, Relators, v. Honorable John J. KELLY, Jr., Judge of Divisionircuit Court, St. Louis County, Respondent.
• Court: Missouri Court of Appeals

Page 383

408 S.W.2d 383

STATE of Missouri ex rel. Antoine SCHOENBACHER and Karl Ederer, Relators, v. Honorable John J. KELLY, Jr., Judge of Division No. 7 Circuit Court, St. Louis County, Respondent.

No. 32283.

St. Louis Court of Appeals, Missouri.

Oct. 18, 1966.

Motion for Rehearing or to Transfer to Supreme Court Denied

Nov. 15, 1966.

Victor Packman, Abraham Davis, Harvey, I. Feldman, St. Louis, for relators.

Husch, Eppenberger, Donohue, Elson & Cornfeld, James W. Singer III, St. Louis, for respondent.

TOWNSEND, Commissioner.

Original proceeding in prohibition.

The procedural history discloses the following sequence of events leading up to the application for the writ:

On May 4, 1965, Hans Coiffures International, Inc. filed its petition in the Circuit Court of St. Louis County, seeking an injunction against Schoenbacher and Ederer (relators herein) to prevent them from violating the terms of separate alleged employment contracts and in a second count to enjoin them from pursuing an alleged scheme and conspiracy to deprive plaintiff of its business, customers, trade secrets, good will, and trade name. In each count plaintiff prayed for a restraining order until such time as its prayer for temporary injunction could be heard. On the same day the respondent judge entered his order to show cause, returnable May 13, 1965, why a temporary injunction should not be granted, and in the same order restrained the defendants from pursuing certain occupations in the City or County of St. Louis until the further orders of the Court. The order recited that defendants had not been notified of the application for injunction; bond in the amount specified by the Court, $2000, was furnished. On the following day the defendants were served with the order.

Two days thereafter defendants filed their separate motions to dismiss the restraining order, which on May 8 were overruled; the restraining order was modified as to defendant Ederer. On May 11, 1965, plaintiff filed its petition for contempt, supplemented by affidavits of two persons reciting violations of the restraining order by defendants. Contempt citation was issued the same day, returnable May 13, 1965; returns to the citation were made on that day. Respondent ordered plaintiff to furnish an additional bond of $2000 by June 1, 1965.

On May 13, 1965, plaintiff announced ready to proceed with the hearing for a temporary injunction but defendants requested a continuance which was granted. On the same day respondent entered the following order:

'On oral motion of defendants order to show cause continued to 9:30 a.m., Monday, June 1, 1965; Return to Order to Show Cause to be filed prior to June 1, 1965, and cause to be tried on the merits on said date. Cause advanced to the top of the trial docket of 1 June, 1965, and peremptorily set that date.'

Plaintiff filed a motion on May 24, 1965, to hold defendants in contempt for failure to appear to have their depositions taken.

Petition for Writ of Prohibition was filed in this Court on May 27, 1965, and the preliminary writ issued on June 25, 1965.

The petition in the suit for injunction sets forth that plaintiff is engaged in the business of operating and conducting a beauty salon and in the business of making wigs and toupees in St. Louis County under the trade name of 'The Duke & Duchess Wigs and Toupees'. It alleges the existence of individual employment contracts, each for a period of four years, which each of the defendants, Ederer as a hair stylist and Schoenbacher as a hair stylist, barber and wig and toupee maker. Each contract provided that upon the termination for any cause of the relative employment defendant would not engage in the same or similar line of business as conducted by plaintiff or work for any individual, firm or corporation engaged in such business within the City or County of St. Louis. It is further alleged that after voluntarily terminating their employment with plaintiff defendants commenced working for themselves as wig makers in St. Louis County under the name of 'Lord and Lady, Ltd., Wig Masters'. In the second count plaintiff charges that defendants voluntarily terminated their employment pursuant to a scheme and conspiracy wrongfully, fraudulently and illegally to deprive plaintiff of its business, customers, trade secrets, good will, trade name, and employees, and to acquire all of the same for themselves by doing business Relations' attack upon respondent's jurisdiction--or lack thereof,--may be adequately summarized under three heads:

in St. Louis County as wig makers. This count also charges that the defendants are using trade secrets and information imparted to them by plaintiff in carrying on plaintiff's business, by using customer lists illegally taken from plaintiff in order to acquire plaintiff's customers, or attempting to persuade plaintiff's employees to cease working for plaintiff, and are using the trade name of 'Lord and Lady, Ltd., Wig Masters' deceitfully to cause the public to believe that when doing business with them the public is actually doing business with plaintiff. Copy of the contract with defendant Schoenbacher recites that it is an agreement between him and Duke & Duchess Wigs and Toupees, Inc., a Missouri corporation. Each such contract contains a provision for liquidated damages of $50.00 per day in case of breach by an employee and in addition provides that the employer shall at its option have the additional right of applying for an injunction in restraint of any such violation. There is a variation between the two contracts as to the compensation of the respective employees and as to other contractual details.

(1) That the restraining order, issued without prior notice, amounted to a denial of due process, was violative of constitutional safeguards and hence was invalid;

(2) That the restrictive covenants of the employment contracts are made unlawful and void by Section 416.040, V.A.M.S.;

(3) That the petition, upon the basis of which the restraining order was issued, did not disclose a situation where, according to the usages of equity, the plaintiff was entitled to relief.

Additionally, as a contention personal to defendant Schoenbacher, it is maintained that the suit against that defendant had no contractual basis since, it is asserted, the petition shows that plaintiff was not a party to Schoenbacher's employment contract. Clearly, if there was no contract between plaintiff and Schoenbacher, respondent had no jurisdiction over the subject-matter of Schoenbacher under Count I. Consideration is given first to the contention thus made.

RELATOR SCHOENBACHER

Under Count I of the petition for an injunction it is alleged that the plaintiff operates its business under the trade name of 'The Duke & Duchess Wigs and Toupees' and that it entered into the alleged contract of employment with Schoenbacher on or about July 22, 1964, which contract is attached to the petition is Exhibit B. The parties to Exhibit B are described as Duke & Duchess Wigs and Toupees, Inc. and Antoine Schoenbacher. Exhibit B is signed 'Duke & Duchess Wigs and Toupees, Inc., by Hans Wiemann', and by Schoenbacher. The petition for injunction states further that Schoenbacher worked for plaintiff as a wig maker until on or about April 28, 1965. The question then plainly is whether or not plaintiff has a contract with Schoenbacher which can be the basis of the suit under Count I.

The petition of plaintiff declares that Exhibit B is a contract between itself and the named defendant. We are then presented with the question of whether the obviously faulty draftsmanship of Exhibit B precludes the plaintiff from showing that the contract was made with itself under a name assumed by the plaintiff for the purposes of dealing with Schoenbacher. Since the petition show that the plaintiff was carrying on business under the name of Duke & Duchess Wigs and Toupees, and since the petition alleges that Exhibit B is a contract between itself and Schoenbacher, we think it is open to Hans Coiffures International, Inc. to show that for the purpose of entering into contractual relations with Schoenbacher it adopted the name of Duke & Duchess Wigs and Toupees, Inc. This conclusion is fortified by the fact that under the contract found in Exhibit B defendant While it would be anomalous to find that one corporation had assumed the name of a non-existent corporation for a particular contractual purpose it does not pass the limits of credibility where mistake in drafting is written large across the face of the whole matter.

Schoenbacher worked for Hans Coiffures International, Inc. for several months before quitting the latter's employment. Additionally, the contract found in Exhibit B designates the employer's beauty salon, 1012--1016 South Brentwood Boulevard, St. Louis County, as the place where Schoenbacher's services were to be rendered; that location is otherwise identified as plaintiff's place of business. '* * * a person may adopt or assume a different name from his true one, and may even carry on business and make contracts under his fictitious name * * *'. Sims v. Missouri State Life Ins. Co., 223 Mo.App. 1150, 23 S.W.2d 1075, 1078. It is well established that a person can bind himself in contract by another than his true name. 'The intent controls' (Guess v. Russell Bros. Clothing Co., Mo.App., 231 S.W. 1015, 1016) whether the person in question is plaintiff, De Maria & Janssen v. Baum, 227 Mo.App. 212, 52 S.W.2d 418, or is defendant, Guess supra. Where that person is plaintiff, his failure to comply with the requirements of the Fictitious Name statute does not result in a condemnation of outlawry. Ditzell v. Shoecraft, 219 Mo.App. 436, 274 S.W. 880.

It is to be noted that under the objection to jurisdiction thus taken by relators nothing is said in the petition for prohibition and the suggestions relating thereto, denying the possibility of jurisdiction over Schoenbacher under...