Universal Loan Corp. v. Jacobson, 40632.

• Decision Date: 20 June 1931
• Docket Number: No. 40632.,40632.
• Parties: UNIVERSAL LOAN CORPORATION v. JACOBSON ET AL.
• Court: Iowa Supreme Court

212 Iowa 1088

237 N.W. 436

UNIVERSAL LOAN CORPORATION

v.JACOBSON ET AL.

No. 40632.

Supreme Court of Iowa.

June 20, 1931.

Appeal from District Court, Polk County; O. S. Franklin, Judge.

Suit for injunction and damages. The plaintiff appellant complains of a breach of implied contract, violation of fiduciary duties, and unfair competition. The petition alleges collusion between the defendant appellee Jacobson and appellant's business competitor, defendant Publix Finance Corporation, in circulating letters claimed to be disloyal and otherwise alienating plaintiff's customers. The trial court dismissed the petition for injunction on its merits and refused to award damages to plaintiff.

Affirmed.Bradshaw, Schenk & Fowler, of Des Moines, for appellant.

Stipp, Perry, Bannister & Starzinger, of Des Moines, for appellees.

DE GRAFF, J.

The plaintiff appellant Universal Loan Corporation is engaged in the chattel loan business in Des Moines, Iowa, organized under chapter 419 (sections 9410-9438), Code 1927, and the defendant Publix Finance Corporation is organized and is engaged in a similar business in Des Moines. The defendant Ray D. Newton is the president of the Publix. The defendant Harry Jacobson had been employed by the Universal Loan Corporation as local manager and held such position during the calendar year of 1929. In that year he tendered his resignation effective December 31, 1929, and on said date severed his connection with said company. On January 1, 1930, he entered the employment of the defendant Publix Finance Corporation. Jacobson had been in the retail show business in Des Moines for 35 years, and subsequently in the chattel loan business as an employee for two years, beginning with the Phœnix Finance Company on January 2, 1928, as an appraiser and outside man and on or about April 15, 1928, entered the service of the Universal Loan Corporation.

This action is in equity, and the plaintiff prays a money judgment against the defendants and each of them in the sum of $10,000, and also an injunction to enjoin them and their agents or employees from further circularizing or otherwise soliciting customers of the plaintiff company.

The defendants in answer admit the corporate character of the loan associations in question, the positions of the named individual defendants, and that on and after January 1, 1930, the Publix Finance Corporation mailed to a large number of people the pleaded circulars, Exhibits A, B, and C, and allege that most of said circulars were mailed or distributed to persons other than customers of the plaintiff, but that some of them may have been mailed to customers of plaintiff. The answer contained a general denial of every allegation in plaintiff's petition not especially admitted, qualified, or explained.

This appeal presents two questions which merit consideration and determination: First, was the plaintiff entitled to injunctive relief? Second, was the plaintiff entitled to an award of damages? Of these in their order.

[1][2][3] I. It is essential to state the factual side relative to the basis for the injunction prayed. It is undisputed that the defendant Harry Jacobson was in the employ of the Universal Loan Corporation a little over a year prior to January 1, 1930, and prior to that date he voluntarily resigned his position, as was his legal right, and became associated with the Publix Finance Corporation on January 1, 1930. Jacobson was not a stockholder in the Universal Loan Corporation, nor is it shown by competent evidence that he was a director of said corporation. It is the claim of the plaintiff that Jacobson, when he severed his connection with the plaintiff and entered the employment of the defendant Publix Finance, took with him a list of the names of persons who had been or were at said time borrowers of the Universal Loan. Jacobson in his testimony positively denies this accusation, and states that when he left the employment of the Universal Loan he did not make any list of the customers, nor did he take with him any such list, nor did he give any such list to any third party, and specifically denies that he gave to the Publix Finance or any officer or agent thereof, or cause to be given to them any list of customers of the Universal Loan. The contrary fact is not established. He did state that when he left his former employment he remembered the names of a good many of the customers of the Universal Loan, and from his experience knew the difference between its better and its poorer customers. The defendant Newton testified that he and Jacobson made up the list of names which was used for the circularization of printed letters, advertising the fact of the business of the Publix and that Harry Jacobson was now connected with said company. It appears from the testimony that the individual names which composed the list were secured from the City Directory, the Telephone Directory, Des Moines Daily Record, Credit Reference Book, list of motor accounts, and from other sources at their command. It may be observed that the matter of which the plaintiff, Universal Loan, complains ended in January, 1930. The petition in this case was filed February 4, 1930. When the petition was filed, the act complained of (the circularization) had ceased. It is quite fundamental that rights already lost and wrongs already committed are not subject to injunctive relief. This is especially true where there is no showing that the acts complained of in the first instance are being continued or repeated or that the defendant is threatening or intending to repeat the alleged injury. When it is made to appear that the acts sought to be enjoined had been performed at the time the action for injunction was commenced, the petition is properly dismissable. Wilbois et al. v. Town of Runnells et al., 193 Iowa, 789, 187 N. W. 855. An injunction is not corrective of past injuries. High on Injunctions (4th Ed.) vol. 1, § 23, state the rule as follows: “The appropriate function of the writ of injunction is to afford preventive relief only, and not to correct injuries which have already been committed, or to restore parties to rights of which they have already been deprived. It is not, therefore, an appropriate remedy to procure relief for past injuries, and it is only to be used for the prevention of a future injury actually threatened, and to prevent the perpetration of a legal wrong for which no adequate remedy can be had in damages. And if the act sought to be enjoined has already been committed, equity will not interfere, since...