Worrie v. Boze

• Decision Date: 15 January 1951
• Docket Number: No. 3738,3738
• Citation: 62 S.E.2d 876,191 Va. 916
• Court: Virginia Supreme Court
• Parties: ROSS WORRIE v. CHRISTINE AND LYNN J. BOZE, DOING BUSINESS, ETC. Record

Page 876

62 S.E.2d 876

191 Va. 916

ROSS WORRIE v. CHRISTINE AND LYNN J. BOZE, DOING BUSINESS, ETC.

Record No. 3738.

Supreme Court of Appeals of Virginia

January 15, 1951.

Emanuel Emroch and George E. Allen, for the appellant.

Hunton, Williams, Anderson, Gay & Moore and Francis V. Lowden, Jr., for the appellees.

JUDGE: MILLER

MILLER, J., delivered the opinion of the court.

Arthur Murray enjoys a national reputation as a dancing master, teacher and exponent of modern ballroom dancing. He is the author of books, manuals and treatises on the style and art of dancing and the mode and manner in which it should be taught. It appears from the record that he and his wife operate a corporation known as 'Arthur Murray, Incorporated', with offices in the city of New York. Under authority and contracts from this parent organization other corporations and individuals conduct dancing schools and studios throughout the United States wherein the 'Arthur Murray' name is used and the 'Arthur Murray Method' and style of dancing is taught by instructors and interviewers learned and proficient in the art of dancing as expounded and taught by him.

Christine and Lynn J. Boze, appellees (former students and instructors of Arthur Murrary), under written contract of February, 1947, with Arthur Murrary, Incorporated, were authorized to open and conduct a dancing school and studio in Richmond, Virginia, wherein the 'Arthur Murray' name was to be used and instruction in dancing was to be taught 'in accordance with the Arthur Murray Method * * *.'

Upon being granted the right to operate this Arthur Murray Dancing School, appellees expended the sum of $20,000 to equip their studio. During the ensuing two years, additional sums of about $18,000 were expended by them in advertising and $55,000 in salaries was paid to dancing instructors, supervisors, interviewers, and other employees. To be protected against competition from their own employees during their employment and for a reasonable period thereafter and to set out the consideration and terms of employment, written contracts were made by appellees with each supervisor, teacher and instructor. In these contracts, the employees agreed, among other things, not to compete with the studio at which they were or had been employed.

On February 18, 1947, such a contract was entered into with appellant Ross Worrie. It was for a term of one year and upon expiration of that period it would automatically renew itself for monthly terms unless terminated by either party by notice in writing. It also provided for execution and delivery by appellant to appellees of two notes in the respective sums of $250 and $500 in payment for instruction that he was to obtain. However, these notes were dischargeable, respectively, by the rendition of services by appellant for fixed periods of time and compliance with other conditions, all as set out in the agreement.

In addition to monetary considerations to be paid to appellant for his services during the term of the contract there are covenants therein whereby appellees agreed to train appellant in the Arthur Murray Methods of Instruction in Dancing in order to qualify and fully fit him as a competent teacher and instructor. There are also recitals that there will be disclosed to him during his employment the names of appellees' pupils and patrons, with whom he will be brought in contact. However, as they wished to build up good will for their business and retain their clientele, it is also recited in the preamble of the contract that they desire to make provision that such 'disclosures shall not be abused, revealed to the employers' competitors or used by the employee for his own benefit in competition with the employers. ' To that end the following paragraphs and covenants are then set out in the agreement:

'4. The employee agrees during his employment, that he will not directly or indirectly be or become engaged in business as a dancing instructor or teacher, accept employment in any capacity whatsoever in any dancing studio, dance for hire or compensation in any manner, give exhibitions, instruction or lectures in dancing in any form whatsoever, directly or indirectly, solicit business in any manner relating to dancing or dancing lessons or instructions from anyone or have any dealings, contracts, or relationship in respect to dancing with any person except for or at the direction of the employers.

'5. The employee agrees that upon the termination of his employment for any cause, and for a period of two years thereafter, that he will not in the city of Richmond, Virginia, within 25 miles of any studio which uses and is entitled to use the name of Arthur Murray, without the written consent of the employers, accept employment in any manner relating to dancing, dancing engagements or exhibitions, dancing lessons or instructions, or lectures in dancing in any form whatsoever, or be or become engaged directly or indirectly in business in any such respects relating to dancing at any hotel, resort, ship or establishments of any kind at which the employers have, had, or may have a branch studio, during the employee's employment or during such two year period thereafter, nor solicit business for himself or any other business in any manner relating to dancing, from any of the employer's pupils or patrons or from any other person who had, at any time, been pupils or patrons or from persons whose names have been furnished to the employee by the employers, nor directly or indirectly engage in teaching dancing to any person.

* * *

'8. The employee agrees to pay to the employers the sum of $750.00 as compensation to the employers for the courses of training given to him at the cost and expense of the employers, and not by way of satisfaction of any claim for damages for breach of contract, and does herewith deliver to the employers two separate promissory notes in the sums respectively of $250.00 and $500.00 for such indebtedness.

'If the employee remains in the employ of the employers for a period of not less than one year from the date hereof, as he is required to do, the employers will cancel and discharge the note for $250.00. The employers also agree that they will not demand payment of such note for a period of one year from the date hereof, provided the employee remains in their employ. If the employee remains in the employ of the employers for a period of at least one year from the date hereof and thereafter his employment is terminated and he thereafter for a period of two years, observes all of the restrictions and other provisions of paragraphs 4 and 5 hereof, then and in that event the employers will at the end of such two year period cancel and discharge the said note for $500. The employers will not demand payment of the said note during the period of the employee's employment, nor during the said period of two years thereafter, so long as the employee continues to observe such restrictions. If, however, the employee within a period of two years after the termination of his employment for any cause shall either become engaged directly or indirectly in business as a dancing instructor or teacher, or accept employment in any manner relating to dancing, but not in violation of the provisions of this agreement, said note of $500 in payment for training given the employee by the employers shall be payable without further liability on the part of the employee.

'9. The parties hereto, recognizing that irreparable injury will result to the employers in event of a breach of the terms of this contract on the part of the employee, agree that in such event the employers shall be entitled, in addition to any other remedies and damages available, to an injunction to restrain the violation thereof by the employee, and all persons acting for or with him.'

On December 4, 1948, appellant's employment was terminated by appellees and on January 17, 1949, he and one Charles Baily opened a dancing school and studio in the city of Richmond. It is conducted under the style and firm name of 'Ross-Baily School of Dancing.' Appellant is a partner in that business and enterprise and acts as one of the dancing instructors.

This suit was instituted by appellees against appellant to restrain him from operating and conducting the dancing school. The $250 note had been released and discharged under the terms of the agreement, but judgment was sought on the $500 note. The testimony was heard ore tenus. An injunction was awarded restraining appellant from operating the dancing school or accepting employment in any manner relating to dancing. He was forbidden to 'directly and indirectly engage in teaching dancing to any person' which a radius of 25 miles of appellees' studio for a period of two years from December 4, 1948. Judgment was also rendered against him on the $500 note.

Appellant admits his liability upon the note but says that it is the full measure of his obligation and no injunctive relief should have been granted. In this respect, he contends that (a) he was wrongfully discharged without cause and without being given the written notice of termination provided for and that appellees having so breached the contract, they are not entitled to injunctive relief; (b) whether or not the contract was wrongfully or rightfully terminated by appellees, it does not in any event contemplate or sustain the award of injunctive relief against the operation of a dancing school or studio by him; and (c) the injunction should have been denied because the contract is harsh and unconscionable and appellees have not and will not sustain irreparable injury.

It would serve no good purpose to set out the evidence offered by appellees tending to prove that appellant's conduct amounted to a breach of the contract and justified his dismissal, nor that offered by him to establish the fact that he had faithfully performed his duties. It is sufficient to say that upon this factual...