Wittenberg v. Mollyneaux
| Decision Date | 03 October 1900 |
| Docket Number | 11,347 |
| Citation | 83 N.W. 842,60 Neb. 583 |
| Parties | MARCUS WITTENBERG ET AL. v. JOHN T. MOLLYNEAUX |
| Court | Nebraska Supreme Court |
ERROR to the district court for Clay county. Tried below before STUBBS, J. Affirmed.
AFFIRMED.
G. W Bemis and R. G. Brown, for plaintiffs in error.
E. E Hairgrove and Thomas Ryan, contra.
John T Mollyneaux brought this action in the district court to recover damages of Marcus Wittenberg and his co-defendants for breach of a covenant contained in a deed of conveyance. In June, 1889, the plaintiff was the owner of a hotel in the city of Sutton, and the defendants were at the same time the owners of another hotel in the same city. The parties agreed to exchange their properties, and the agreement was carried into execution. The conveyance made by Mollyneaux to the defendants provided that the premises therein described should not be used for hotel purposes for a period of two years. The petition alleges that this stipulation has been violated, and that the plaintiff has been damaged thereby. Issues were joined by the filing of an answer and reply. The cause was tried to a jury, and, there having been a verdict and judgment for the plaintiff, the defendants bring the record here for review, alleging error in the admission and exclusion of evidence, and in the giving and refusal of instructions. Many of the rulings assigned for error assume that the covenant upon which the action is grounded is valid and enforceable. This position is resolutely assailed by counsel for the defendants. They contend that there being only two hotels in Sutton, the closing of one would give the owner of the other a monopoly and that such a result would be prejudicial to the interests of the traveling public and contrary to the policy of the state. We think the restriction upon the use of defendants' property was not unlawful. Contracts which impose unreasonable restraints upon the exercises of any business, trade or profession are said to contravene sound public policy; but partial restraints are not deemed to be unreasonable when they are ancillary to an actual purchase of property made in good faith, and are apparently necessary to afford fair protection to the purchaser. Although such agreements tend to suppress competition and bring about conditions favorable to the creation of monopolies, they are in harmony with the policy of the state, which is to promote commerce by facilitating the sale and transfer of property. Of course if it be shown that the main purpose of the agreement is to secure a monopoly, and that the purchase of the property was a mere incident or means to that end, it is within the rule applicable to ordinary combinations in restraint of trade, and will not be enforced. United States v. Addyston Pipe & Steel Co. 85 F. 271, 46 L. R. A. 122; Richardson v. Buhl, 77 Mich. 632, 43 N.W. 1102; People v. Milk Exchange, 145 N.Y. 267, 39 N.E. 1062; State v. Nebraska Distilling Co. 29 Neb. 700, 46 N.W. 155; State v. Standard Oil Co. 49 Ohio St. 137, 30 N.E. 279; Distilling & Cattle Feeding Co. v. People, 156 Ill. 448, 41 N.E. 188. The defendants in this case, notwithstanding the contract in question, were at liberty to engage in the hotel business at Sutton; so was any one else who might choose to do so. And the business might be established and carried on anywhere within the corporate limits, except upon the premises formerly owned by Mollyneaux. Under these circumstances, it would seem that the public interests were not formidably threatened by the restrictive covenant, which was doubtless designed to secure to the plaintiff the patronage of his old customers. But the suggestion is made that when the case was first here it was intimated that the facts alleged in the answer would, if proven, constitute a good defense to the action. We are aware of the rule that forbids an appellate court to reconsider and correct, on a subsequent appeal of a cause, an erroneous decision made by it on a former appeal. Ripp v. Hale, 45 Neb. 567, 64 N.W. 454; Coburn v. Watson, 48 Neb. 257, 67 N.W. 171; Omaha Life Ass'n v. Kettenbach, 55 Neb. 330, 75 N.W. 827; Hayden v. Frederickson, 59 Neb. 141, 80 N.W. 494; Leavitt v. Bell, 59 Neb. 595, 81 N.W. 614. The judgment rendered by this court when the cause was first here is, we concede, a finality; it is the law of the case, an adjudication binding upon the parties, and settling definitely, for the purposes of the litigation, all questions adjudicated. This rule, however, does not apply to a mere expression of opinion in regard to matters not actually involved in the decision. The only point determined in Mollyneaux v. Wittenberg, 39 Neb. 547, 58 N.W. 205, touching the agreement of the defendants, was that the district court erred in holding it to be unenforceable. The legal effect of the averments of the answer, except those relating to the waiver, was not considered by the court and was not decided. Upon this branch of the case our conclusion is that the restrictive covenant was valid when made; that events subsequently arising could not, and did not, render it invalid, and that, therefore, the trial court did not err in excluding evidence offered, and instructions requested, on the hypothesis that such covenant was null in its inception, or else became null by reason of the failure of Mollyneaux to furnish fair and reasonable entertainment to all comers. We have not overlooked the contention of counsel that the public has a special interest in hotels; that they are affected with a public use, and that it is contrary to public policy to discontinue the operation of a business of this kind. The first answer to this argument is that the evidence does not show that the Oakland Hotel was in operation when the exchange of properties was effected, and consequently there is no proof that the contract made only one hotel to run where two were running before. The second answer is that the right to run a hotel is not a...
To continue reading
Request your trial