Tench v. Weaver

CourtUnited States State Supreme Court of Wyoming
Citation374 P.2d 27
Docket Number3069,Nos. 3068,s. 3068
PartiesAlan H. TENCH, Appellant (Plaintiff below), v. Adrian F. WEAVER, Jr., Appellee (Defendant below). Adrian F. WEAVER, Jr., Appellant (Defendant below), v. Alan H. TENCH, Appellee (Plaintiff below).
Decision Date13 August 1962

Walter Scott, Laramie, for appellant in No. 3068 and appellee in No. 3069.

Pence & Millett, George J. Millett, Laramie, for appellee in No. 3068 and appellant in No. 3069.

Before BLUME, C. J., and PARKER, HARNSBERGER and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

This case involves the validity of a restrictive covenant in an employment contract of a veterinarian.

Dr. Adrian F. Weaver, Jr., was a practicing veterinarian in Laramie, Albany County, Wyoming, and on August 8, 1957 he employed Dr. Alan H. Tench as an assistant under a written agreement. According to the contract Dr. Tench was to be employed for one year and was to receive 40 percent of the net proceeds of the business. At the end of the year, another veterinarian joined the firm and the three continued to work until in January, 1959, when Dr. Tench was requested to leave.

The employment contract under which Dr. Tench started to work for Dr. Weaver contained, in paragraph 5, the following:

'5. Unless otherwise agreed in writing by Dr. Weaver hereafter, Dr. Tench shall not engage in the practice of Veterinary Science or medicine, nor render any services as Veterinarian for compensation, in the county of Albany, in Wyoming, for a full period of five (5) years after August 31, 1958. Should he attempt directly or indirectly to do so, he shall be liable and pay all of Dr. Weaver's actual damages and expenses, including reasonable attorney's fees, for enforcement of this provision and recovery of any damages sustained by Dr. Weaver on account thereof.'

In March, 1959, Dr. Tench obtained employment with the United States Department of Agriculture, Animal Disease Eradication Service. Under this employment he was sent into Albany County to assist in completing the government's program of disease eradication. Dr. Tench's superior in the government's service testified that private practitioners were allowed to do the work under a set contract fee, but the program was to be completed in 18 months. He also testified that Dr. Weaver had received $8,792.15 for his part in testing and vaccinating under the government's program. The remaining work done by Dr. Tench was described as cleanup work which the department of agriculture had not been able to get the private practitioners to do.

The instant litigation was initiated by Dr. Tench to recover fees allegedly earned while he was working for Dr. Weaver. A counterclaim was made by Dr. Weaver in which he claimed damages for violation of the restrictive covenant in the employment contract. He also asked for attorney fees as provided for in the contract and sought to have Dr. Tench enjoined from further violations of the covenant.

The final result was that the parties mutually agreed that the sum of $391.13 was owing from Dr. Weaver to Dr. Tench on account of fees earned during the period of employment, and judgment was given to Dr. Tench for that amount. With respect to the restrictive covenant, the trial court held Dr. Tench guilty of violating the covenant but found that no damages had been proved by Dr. Weaver. It therefore issued an injunction restraining Dr. Tench from the further practice of veterinary science or medicine or rendering any services as veterinarian for compensation in the County of Albany until August 31, 1963. Dr. Weaver was given judgment in the amount of $150 for attorney fees. Both parties have appealed.

Concerning the proper interpretation of paragraph 5 of the contract here involved, we notice first of all that Dr. Tench agreed for a period of time not to 'engage in the practice of veterinary science or medicine.' This phrase is defined by § 33-369, W.S.1957, in the act pertaining to veterinarians, but § 33-381, W.S.1957, provides specifically that the act shall not apply to veterinarians in the employ of the United States Department of Agriculture, while in the performance of their official duties.

Counsel for Dr. Weaver admitted in his oral argument before this court that the acts of Dr. Tench, during the time complained of, did not constitute an engaging in the practice of veterinary science or medicine. Also, the trial court made no finding to that effect. We can therefore consider any claim that Dr. Tench improperly 'engaged' in the practice of veterinary science or medicine waived. However, counsel seriously contends, and the trial court so found, that Dr. Tench violated his agreement not to 'render any services as...

To continue reading

Request your trial
10 cases
  • Hapney v. Central Garage, Inc.
    • United States
    • Florida District Court of Appeals
    • 1 Febrero 1991
    ...Found., Inc., 384 S.E.2d 842 (W.Va.1989); Rollins Burdick Hunter of Wis. v. Hamilton, 101 Wis.2d 460, 304 N.W.2d 752 (1981); Tench v. Weaver, 374 P.2d 27 (Wyo.1962). 3 Section 1. Paragraph (a) of subsection (2) of section 542.33, Florida Statutes, is amended to 542.33 Contracts in restraint......
  • Hopper v. All Pet Animal Clinic, Inc.
    • United States
    • Wyoming Supreme Court
    • 1 Octubre 1993
    ...is reasonable and has a fair relation to, and is necessary for, the business interests for which protection is sought. Tench v. Weaver, 374 P.2d 27, 29 (Wyo.1962). Two principles, the freedom to contract and the freedom to work, conflict when courts test the enforceability of covenants not ......
  • City of Casper v. Utech, 93-186
    • United States
    • Wyoming Supreme Court
    • 11 Mayo 1995
    ...a fact to a legally required extent, or the necessity of finally establishing a fact. 31 C.J.S. Evidence § 103, p. 709. Tench v. Weaver, 374 P.2d 27, 29 (Wyo.1962). The encyclopedia tells The term burden of proof has been used to describe two related but distinct concepts: the burden of pro......
  • Garcia v. State, 88-98
    • United States
    • Wyoming Supreme Court
    • 24 Julio 1989
    ...the necessity of establishing a fact to a legally required extent, or the necessity of finally establishing a fact. Tench v. Weaver, 374 P.2d 27, 29 (Wyo.1962). The burden of proof never shifts from one party to the other at any stage in the proceeding. On the other hand, "going forward wit......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT