W. W. Roberts v. C. W. Lemont

• Decision Date: 08 March 1905
• Docket Number: 13,729
• Citation: 102 N.W. 770,73 Neb. 365
• Parties: W. W. ROBERTS, APPELLEE, v. C. W. LEMONT, APPELLANT
• Court: Nebraska Supreme Court

102 N.W. 770

73 Neb. 365

W. W. ROBERTS, APPELLEE, v. C. W. LEMONT, APPELLANT

No. 13,729

Supreme Court of Nebraska

March 8, 1905

APPEAL from the district court for Madison county: JOHN F. BOYD JUDGE. Reversed.

REVERSED.

M. D Tyler, for appellant.

Mapes & Hazen, contra.

OLDHAM C. AMES and LETTON, CC., concur.

OPINION

OLDHAM, C.

This suit was instituted in the district court for Madison county by W. W. Roberts, appellee, to enjoin C. W. Lemont, appellant, from soliciting or writing fire, hail, cyclone and plate glass insurance in Norfolk, Nebraska. A temporary restraining order was granted which, upon final hearing in the district court, was made perpetual. From this decree Lemont brings an appeal to this court.

The facts underlying the controversy are that prior to May, 1902, Lemont was engaged in the real estate and insurance business in Norfolk, Nebraska. Roberts, the appellee, was engaged in the same business in the same place; the two parties were then occupying the same office. During the month of May negotiations were entered into between them which resulted in the sale by Lemont to Roberts of his office furniture and insurance business for the sum of $ 240. After this sale Lemont retired from the insurance business and devoted his attention to real estate for about 15 months, when he attempted to reengage in the business of soliciting insurance. Roberts thereupon instituted the case at bar, alleging, in substance, that the defendant Lemont, "in consideration that the plaintiff would purchase from him his fire, hail, cyclone and plate glass insurance agency for the sum of $ 240, agreed with the plaintiff that he would turn over to said plaintiff the said insurance agency, furniture and the good will of said defendant and business, and that he, the said defendant, would at once cease a fire, hail, cyclone and plate glass insurance business in Norfolk, Nebraska, and not again engage in such business in Norfolk, Nebraska." The petition further alleged the compliance of plaintiff with the terms of the contract, and that the defendant, in violation of the terms and conditions of the contract, had and was engaged in the business of soliciting insurance in the city of Norfolk. The prayer was for an injunction permanently restraining the defendant from engaging in such business in the city of Norfolk. The answer admitted the sale of the business to the plaintiff for the sum stated in his petition, and denied each and every other allegation therein. The testimony relied upon to establish the agreement is that of the plaintiff and is substantially as follows:

In answer to the question as to what his agreement was, he said: "Mr. Lemont purposed to sell out his insurance business to me, and there was considerable talk about the price, and finally we agreed on $ 240, and in that there was some furniture, and Mr. Lemont was to go out of the insurance business and have nothing to do with the insurance business, and I was to have nothing to do with the real estate."

Q. You may state what Mr. Lemont said?

A. Mr. Lemont said he turned over the good will and quit the business.

Q. What did he say about remaining out of business?

A. That Mr. Lemont was to stay out of business.

Q. For how long?

A. There was no stated time. He agreed to quit the business.

Q. What did he say as to again going into the insurance business at Norfolk?

A. He did not talk as if he would ever go into the insurance business at Norfolk.

Q. What did you understand as to the good will of the business?

A. I understood he was to sell his business.

Q. Good will?

A. Yes, sir.

Q. What did he (Lemont) say about remaining out of business?

A. That Mr. Lemont was to stay out of business.

Q. For how long?

A. There was no stated time. He agreed to quit the business.

There was no serious conflict between this testimony of the plaintiff and that of the defendant, so that if the testimony of plaintiff is sufficient to sustain the judgment of the trial court it should be affirmed.

The first proposition that confronts us is that the contract relied upon is one in partial or total restraint of trade and as such it is not a favorite of the law. While valid agreements in restraint of trade may be established by clear and satisfactory proof, and when so established their breach may be restrained by injunction, yet to obtain such relief there must be no doubt or uncertainty in regard to their terms, or the consideration on which they are founded. Ordinarily a contract prohibiting one of the parties from carrying on a specific trade or business, without any limitation as to time and place, is against public policy and void. Tecktonius v. Scott, 110 Wis. 441, 86 N.W. 672; Berlin Machine Works v. Perry, 71 Wis. 495, 38 N.W. 82. In Keeler v. Taylor, 53 Pa. 467, Chief Justice Woodward declared that such contracts, if they were not limited to a reasonable time, as well as confined to a reasonable space, were void at law, and that if the terms they imposed were at all hard equity...