Yancy v. Jones

• Decision Date: 29 November 1910
• Citation: 153 Mo. App. 206,132 S.W. 316
• Parties: YANCY v. JONES
• Court: Missouri Court of Appeals

132 S.W. 316

153 Mo. App. 206

YANCY v. JONES

St. Louis Court of Appeals. Missouri.

November 29, 1910.

1. APPEAL AND ERROR (§ 695) — RECORD — EVIDENCE — REVIEW.

Under Court of Appeals Rule 9 (123 S. W. vi), requiring the whole evidence to be embodied in the bill of exceptions in equity cases, the court on appeal in an equity case will not review the sufficiency of the evidence unless the entire evidence is presented in the record, except where the case was tried on agreed statement of facts under rule 22 (123 S. W. viii), notwithstanding rules 8 (128 S. W. v) and 11 (123 S. W. vi), providing that it shall be sufficient to state that there was evidence tending to prove a particular fact, etc.; these applying only to actions at law.

2. APPEAL AND ERROR (§ 907) — FINDINGS — PRESUMPTIONS.

Where the record does not contain all of the testimony, the presumption is that the trial court committed no error in its findings.

3. INJUNCTION (§ 128) — RIGHT TO INJUNCTION.

A court of equity will not grant an injunction except on clearest proof.

4. CONTRACTS (§ 28) — EXISTENCE — EVIDENCE.

Evidence held to justify a finding that a contract was not made between the parties.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Edward O. Yancy against Newton R. Jones. From a judgment for defendant, plaintiff appeals. Affirmed.

Peers & Peers, for appellant. R. T. Stillwell and Wm. G. Schofield, for respondent.

REYNOLDS, P. J.

To follow and quote from the statement of the case by counsel for appellant: "This is an action in equity by Edward O. Yancy, this appellant, and against Newton R. Jones, this respondent, filed in the circuit court of the city of St. Louis to the April term, 1910, in which appellant seeks to enjoin respondent from selling, or causing to be sold, directly or indirectly, any cider, vinegar, or competitive goods, in the states of Iowa, Illinois, Nebraska, Missouri, or Arkansas for a period of five years, in competition to the O. L. Gregory Vinegar Company of St. Louis. The petition in this case is in the usual form and alleges that respondent agreed with appellant that, if he (appellant) would purchase respondent's 2,500 shares of stock in the O. L. Gregory Vinegar Company of St. Louis for $2,000, cash, he (the respondent) would contract and agree not to sell or cause to be sold, directly or indirectly, in the states and territory above mentioned, any cider, vinegar, or other competitive goods for any person, partnership, or corporation in competition to the O. L. Gregory Vinegar Company of St. Louis for a period of five years from the date of said agreement." Going to the abstract, we find that, in addition to the above matter, it states that the agreement of sale to the above effect was then reduced to writing for signature by plaintiff and defendant; that plaintiff paid to defendant the sum of $2,000, the consideration agreed upon aforesaid; but that the defendant failed and refused to sign the written agreement, and in violation of the agreement had entered into the employ of the St. Louis Vinegar Company, a concern doing business in the city of St. Louis as a dealer in the same and similar articles dealt in by the O. L. Gregory Vinegar Company, and, being its competitor in business, to sell its merchandise and products in the states named in competition to the said O. L. Gregory Vinegar Company; that the defendant has been and is selling cider, vinegar, and other competitive goods of the St. Louis Vinegar Company in competition with the O. L. Gregory Vinegar Company in said states to divers persons, etc., whose names are unknown and cannot be stated; and that he will continue to make, and cause to be made, directly or indirectly, such sales of cider, vinegar, and other competitive goods to such persons, partnerships, and corporations in said states and doing business therein of cider, etc., and other competitive goods, unless restrained from so doing by order and decree of the court, to the great damage and injury of the plaintiff, for which he has no adequate legal remedy, hence he prays for a temporary injunction restraining plaintiff until a hearing of the cause and at the hearing for a permanent injunction restraining him from violating the contract referred to and for general relief. A temporary injunction was granted, bond being filed, an answer containing a specific denial and alleging new matter in avoidance, and a reply filed,...