Thos. Cusack Co. v. Myers
| Decision Date | 06 July 1920 |
| Docket Number | 32908 |
| Citation | 178 N.W. 401,189 Iowa 190 |
| Parties | THOS. CUSACK COMPANY, Appellee, v. J. R. MYERS, Appellant, et al |
| Court | Iowa Supreme Court |
Appeal from Webster District Court.--R. M. WRIGHT, Judge.
DEFENDANT appeals from an order refusing to dissolve a temporary writ of injunction.
Affirmed.
Kenyon Kelleher & Hanson, for appellant.
Price & Burnquist, for appellee.
I.
The defendant J. R. Myers appeals from the order of the court overruling a motion to dissolve a temporary writ of injunction. Upon the petition of plaintiff, a corporation engaged in the business of sign painting and advertising for others, for an injunction to restrain the defendant Myers, who is engaged in a like business, from painting signs upon the walls of various buildings in the city of Fort Dodge, upon which signs painted by plaintiff were displayed, a temporary writ was ordered by the judge in vacation, without notice to the defendant. The defendant Myers alone appeared, shortly after the writ was issued and served, and filed an answer, admitting that he had entered into contracts in writing with the owners or tenants of the respective buildings referred to in plaintiff's petition, granting him the privilege of placing advertising upon the wall space occupied by the signs placed thereon by plaintiff, and that he claimed the right, under said contracts, to use said wall space; and also filed a motion to dissolve the temporary writ.
Evidence was offered orally upon the hearing of the motion to dissolve, from which it appears that a contract in writing was entered into between plaintiff and each of the following named persons, who are joined as defendants herein, for the right to paint signs upon the walls of certain buildings owned or occupied by them, to wit: With Colby Bros., dated August 12, 1917; with Julius & Awe, dated August 1, 1917; with J. A. McIntyre, dated August 15, 1917, each for one year; with Hoffman & Piesinger, T. F. Taff, Sackett & Haire Drug Company, Smith Bros., and Wafful & Welty, dated June 1, 1917, and expiring June 1, 1918. The contracts were identical in form, and contained a provision granting plaintiff the privilege of occupying the premises on like terms from year to year, for a period of not to exceed five years. Each contract also recited and acknowledged the receipt of a consideration of from $ 5.00 to $ 10. Written contracts dated after June 1, 1918, reciting a consideration of from $ 5.00 to $ 25, and granting defendant the privilege of using the wall space in question, duly signed by the owner or occupant of said buildings, were entered into with the defendant Myers. These contracts contain a provision for the annual renewal and extension thereof.
It further appears from the evidence that a representative of plaintiff came to Fort Dodge on or about June 18, 1918, for the purpose of renewing the several contracts above referred to, when he found the advertisements placed on the walls of the buildings painted out, and a sign of the Pillsbury Milling Company placed thereon. Near the bottom of the signs displayed by plaintiff were written the words, "Thos. Cusack Co.," for the purpose of indicating the advertising agency using the space. It is also claimed, and this the evidence tends to show, that the agent of defendant, who was a foreman, and in charge of a force of painters, knew of the contracts between plaintiff and his codefendants, and that, as he had formerly been employed by plaintiff in the same capacity, he was familiar with the form of contract used.
The grounds of defendants' motion to dissolve the injunction are, in substance, that the contracts in question were naked licenses, revocable at the pleasure of the grantors; that several of them had expired before contracts were made with defendant, and that no right of renewal, therefore, existed; that the allegations of plaintiff's petition clearly show that it has an adequate remedy at law for damages, and no grounds of equitable cognizance are alleged therein. The motion asks the dissolution of the writ generally, and does not ask for a modification thereof; so that the only question presented for our decision is whether the court abused its discretion in refusing to dissolve the injunction. Brody v. Chittenden, 106 Iowa 340, 76 N.W. 740.
As already stated, each contract referred to was for one year for a fixed consideration, paid in advance; and it would seem to be immaterial whether it be treated as a lease, a license, or a simple contract to use...
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