Noe v. McDevitt

228 N.C. 242

Opinion

Sea well, J.

Judge Burney predicated his judgment denying plaintiff injunctive relief and dismissing his action on a holding that under the evidence the territory named in the contract — North Carolina and South Carolina — was too extensive to come within the reasonable requirement of plaintiff’s protection, supposing him to be entitled to such relief anywhere upon the facts found, and was an unreasonable restraint on employment. ¥e concur in this conclusion. Giving the plaintiff the benefit of very generous inferences, while he may have shown the conduct of a business to some extent in eastern North Carolina, he has not definitely shown any clientele throughout the much broader territory here involved such as would correlate the protection sought with any need of his business. Comfort Spring Corp. v. Burroughs, 217 N. C., 658, 9 S. E. (2d), 473; cp. Moskins Bros. v. Swartzberg, 199 N. C., 539, 15-5 S. E., 154, cited by appellant. Where the facts are established, reasonableness of restraint is a matter for the court. The court cannot by splitting up the territory make a new contract for the parties' — it must stand or fall integrally.

Since the contract is in partial restraint of employment, the burden was on the plaintiff to establish its reasonableness and this he failed to do. Kadis v. Britt, 224 N. C., 154, 29 S. E. (2d), 543, 152 A. L. R., 405; Benjamin on Sale, Seventh Ed., p. 535; ibid., p. 538.

Other features of the case which the plaintiff sought to present are fully discussed in Kadis v. Britt, supra, which in factual aspect closely parallels the case at bar, and we forbear needless repetition.

In view of the conclusion reached, it is unnecessary to discuss the . status of the codefendant company.

The judgment of the Superior Court is

Affirmed.