Jones v. Morrow

6 Pa. D. & C. 759

• Court: Pennsylvania Court of Common Pleas, Alleghany County
• Decided: July 1, 1924
• Docket: No. 1116
• Status: Published

Opinion

Findings of fact.

Evans, J.

1. On Oct. 6, 1920, the defendant, W. J. Morrow, having been for sometime engaged in the undertaking business in Wilmerding, Allegheny County, Pennsylvania, sold his business to the plaintiff by articles of agreement in writing, a copy of which is attached to the bill of complaint, by which contract of sale he sold all the goods, merchandise and fixtures set forth in a schedule attached to the contract, “together with the good-will and the business of said first party in the business now carried on by him as funeral director and embalmer.”

2. In the said contract the defendant agreed as follows: “Said first party for further consideration also covenants and agrees and binds himself, his heirs, executors and administrators, not to carry on, conduct, manage or operate any business as funeral director and embalmer within a distance of ten miles from any point in the Borough of Wilmerding aforesaid, this restriction, to extend for the term of ten years next ensuing.”

' 3. On Dec. 24, 1923, the defendant entered the employ of George L. Bagnall, a funeral director in the Borough of Wilmerding, whose place of business was about one square distant from that of the plaintiff, which he had purchased from the defendant. On Dec. 27th, three days after his employment, Bagnall published in the Wilmerding News-Tribune the following advertisement : “W. J. Morrow, formerly in business on Airbrake Avenue, is now with G. L. Bagnall, funeral director, Wilmerding, Pa.” That advertisement was shown by Bagnall to the defendant and he made no objection to its insertion or the continuance of such advertisement, and he made no examination of subsequent issues of this paper to ascertain if the advertisement was continued. The advertisement was continued for some weeks, and as late as-February of 1924, in a monthly publication published in East McKeesport, Pa., an adjoining borough to Wilmerding, the advertisement was published.

4. The defendant is an undertaker and embalmer of many years’ experience, and in his employment with Bagnall he does any work in the business in the actual conduct of funerals. He has nothing to do with the making of contracts or purchase of material or the collection of accounts. He publicly conducts funerals for Bagnall.

Conclusions of law.

1. The defendant, W. J. Morrow, has violated his agreement with the plaintiff “not to carry on, conduct, manage or operate any business as funeral director and embalmer within a distance of ten miles from any point in the Borough of Wilmerding aforesaid, this restriction to extend for a term of ten years next ensuing,” by engaging as an employee of George L. Bagnall and entering in that employ and assisting in the conduct of the business of Bagnall. The defendant, W. J. Morrow, should be enjoined from further continuing in the employ of George L. Bagnall.

Discussion.

In the language of the article of agreement, Morrow does not specifically covenant not to enter into the employ of another funeral director, but he does agree not to conduct, operate or carry on any business. Now, one can carry on a business; one can conduct a business, and, as has been said by our Supreme Court in the case of Pittsburgh Stove and Range Co. v. Pennsylvania Stove Co., 208 Pa. 37: It was not only the capital of the defendant that the plaintiff sought to keep out of the business, but it was in view of his skill, his influence, his personal capacity, not only to carry on, but to build up a business, that the agreement was made. That the engagement of Morrow by Bagnall was considered by both of them particularly advantageous in the building up of Bagnall’s business is shown by the advertisements which were immediately put in the newspapers and which could be continued indefinitely in the newspapers if the employment of Morrow by Bagnall can be sustained under that agreement. Within three days after the employment of Morrow, Bagnall inserts in a local newspaper the fact that “W. J. Morrow, formerly in business in Wilmerding, is with George L. Bagnall, funeral director.” Of course, it was the fact that Morrow was with him that was used in order to get Morrow’s friends and those who had dealt with him in the past.

It is true that in the case above quoted the defendant was the president of the corporation with which he was employed. In speaking of the question that there was no evidence that he was a stockholder, or whether the simple employment was sufficient to violate the contract, the Supreme Court says: “It is apparent, therefore, that it is immaterial, so far as it affects the appellee and its business, whether the appellant is an officer or stockholder of the company, or whether he is an employee, whose duties require him to assist in the manufacture and sale of the goods.”

That applies aptly to this case. He conducts funerals, embalms bodies and does any of the work, except he makes no contracts, he collects no money, he sends out no bills, but he is a skillful undertaker and embalmer.

From 'William J. Aiken, Pittsburgh, Pa.