Orkin Exterminating Co. v. Wilson

40 S.E.2d 696, 227 N.C. 96, 1946 N.C. LEXIS 464

• Court: Supreme Court of North Carolina
• Decided: December 18, 1946
• Status: Published

Opinion

Winborne, J.

The record discloses that defendant, appellant, excepts (1) to each of the findings of fact, and (2) to each of the conclusions of law contained in the judgment, and (3) to the signing of the judgment, and assigns each as error.

As to the first assignment: The findings of fact appear to be supported by the evidence. In fact, the findings only relate (a) to the contracts between the parties, both of which are in writing, and as to which there does not appear to be any controversy; and (b) to defendant’s breach of the restrictive covenants, — findings as to which are not inconsistent with admission made by defendant in his answer which he offered in evidence on the hearing. Moreover, the record fails to show that defendant requested or suggested other findings of fact.

As to the second assignment: The conclusions of law appear to be in keeping with well settled general principles of law as applied in former decisions of this Court. See Scott v. Gillis, 197 N. C., 223, 148 S. E., 315; Moskin Bros. v. Swartzberg, 199 N. C., 539, 155 S. E., 154; Beam v. Rutledge, 217 N. C., 670, 9 S. E. (2d), 476.

The judgment below may be approved aptly upon authority of these cases. Indeed, the factual situation in the Moslems case is strikingly similar to- that in the present action, and there, as here, the employee was manager of the employer’s business. And in respect thereto the Court had this to say: “It is obvious that in the performance of his duties as such manager, the employee acquired an intimate knowledge of his employer’s business, and had a personal association with his customers, which, when his employment terminated for any cause, would enable the employee, if employed by a competitor of his employer, to injure the business of the latter. We think the covenant is reasonable in its terms and not unreasonable in time or territory.”

Moreover, in the Beam case, supra, referring to restrictive covenant there involved, the Court through Stacy, C. J., makes this pertinent observation: “The parties themselves when the instant contract was made, regarded the restriction as reasonable. They are dealing with a situation of which both were familiar ... It is limited both as to time and place. We cannot say that the restraint put upon defendant by his contract is unreasonable as presently applied.”

The case of Kadis v. Britt, 224 N. C., 154, 29 S. E. (2d), 543, is distinguishable from the present case in factual situation.

As to the third assignment: In the light of what has been said above, the exception to the signing of the judgment becomes formal.

The judgment below is

Affirmed.