Sturtevant v. Dowson

• Decision Date: 07 November 1923
• Citation: 219 P. 802,110 Or. 155
• Parties: STURTEVANT v. DOWSON ET AL.
• Court: Oregon Supreme Court

219 P. 802

110 Or. 155

STURTEVANT v. DOWSON ET AL.

Supreme Court of Oregon

November 7, 1923

Department 1.

Appeal from Circuit Court, Lane County; G. F. Skipworth, Judge.

Action by C. C. Sturtevant against George H. Dowson and another copartners as Dowson & Moyer, with counterclaim by defendants. From judgment for plaintiff, defendants appeal. Affirmed.

This was an action on a promissory note given on the 17th day of January, 1921, in the sum of $2,142.44, and in effect payable on demand. The complaint alleges such demand, and credits the defendants with certain sums paid by them and indorsed on the note, leaving an alleged balance of $2,088.92, for which sum plaintiff prays judgment, together with attorney's fees. The note was originally given to E. C. Sturtevant, the wife of plaintiff, and by her indorsed to plaintiff, who brought the action.

As a first defense it is alleged that E. C. Sturtevant, the original payee of the note, was in possession of a store building at Crow, Or., and that she was there engaged in the mercantile business, together with her husband; that C. C Sturtevant was postmaster, and had the post office in the store building at Crow, Or., which fact drew many customers to the store, and that he owned certain post office fixtures therein; that Crow is a small place, in the country, and off from any railroad, and is so small that it is impossible for more than one small store to exist therein. It is further alleged that on January 17, 1921, the defendants leased the store building from Mrs. Sturtevant, for the purpose of engaging in the mercantile business therein, which purpose was well known to her and her husband; and that, on said date, for the consideration hereinafter expressed, C. C Sturtevant sold and delivered to the defendants the said post office fixtures, and covenanted that the post office should remain within the said store building, unless the same should be removed by order of the United States government; and that Mrs. Sturtevant sold and delivered to the defendants the said stock of merchandise, business, and good will of the business, and that each of the Sturtevants covenanted and agreed not to engage in the mercantile business, nor to assist any one else therein, at Crow, Or., so long as the defendants, or their assignees, should be engaged in the mercantile business in said place; and that the Sturtevants put the defendants into possession of said store building post office fixtures, and stock of merchandise, and the defendants immediately began to engage in the mercantile business, and have been so engaged ever since, and purpose to continue in said business. It is further alleged that, on January 17, 1921, in consideration of the sale and delivery to them of said post office fixtures, and the agreement of the plaintiff not to remove the post office from the store building, and the sale and delivery to them of the stock of merchandise, business, and good will of the business, and the covenant and agreement of each of the Sturtevants not to engage in the mercantile business, nor to assist any one else therein at Crow, Or., so long as the defendants or their assignees should be engaged in said business at said place the defendants were to begin and did begin to engage in the mercantile business at once, and defendants agreed to pay the Sturtevants the sum of $3,142.44, of which the sum of $1,000 was paid at that time, and a note for $2,142.44 was made and delivered.

It is then further alleged that defendants agreed to pay for such stock of merchandise and post office fixtures the price that the Sturtevants had paid therefor at wholesale prices, and that the Sturtevants represented, in order to induce defendants to make the purchase, that the wholesale price paid by them therefor was the sum of $3,142.44 and that the average daily sales from the said store during the year of 1920 had been between $40 and $50. Defendants alleged that these representations were false, and that the wholesale price of the goods and fixtures did not exceed the sum of $1,900, and that the daily sales had not exceeded the sum of $20 a day. The usual allegations of intent to defraud and reliance by the defendants were sufficiently pleaded. They asked damages on account of these false representations.

As a further defense defendants alleged that during the month of October, 1921, each of the Sturtevants violated the agreement not to engage in the mercantile business, nor to assist any one else therein at Crow, Or., in that they established another store at said place, wherein they have sold and are selling merchandise to about 100 of the defendants' customers, to the damage of the defendants, in that, except for said violation, the defendants could have sold merchandise to the said customers at a profit of $1,600, and that the right of the defendants to engage in the mercantile business at said place...