W. S. Wolverton & Son v. Bruce

Court Of Appeals Of Indian Territory

W. S. Wolverton & Son v. Bruce

89 S.W. 1018, 6 Indian Terr. 135, 1905 Indian Terr. LEXIS 11

CourtCourt Of Appeals Of Indian Territory

DecidedOctober 27, 1905

StatusPublished

Cited by3 cases

This text of 89 S.W. 1018 (W. S. Wolverton & Son v. Bruce) is published on Counsel Stack Legal Research, covering Court Of Appeals Of Indian Territory primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

W. S. Wolverton & Son v. Bruce, 89 S.W. 1018, 6 Indian Terr. 135, 1905 Indian Terr. LEXIS 11 (Conn. 1905).

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Opinion

Gill, J.

(after stating the facts). Appellants assign the following error: “The court erred in sustaining the demurrer to the complaint, and in dismissing the cause and [141]*141taxing costs against appellants.” Our statute defines what defects in a complaint may be taken advantage of by demurrer, and all other defects shall be taken by way of answer. The defects sought to be reached in this demurrer are not statutory in any sense, and it was error on the part of the court to sustain the demurrer, and the cause is remanded, with directions to the court below to overrule the demurrer and require the appellees to further plead.

Before leaving the matter we may say in passing that a contract, whether oral or written, such as described in the complaint, is held by all the later authorities to be a valid contract, as not in restraint of trade. 2 Parsons on Contracts (6th Ed.) 911, and notes; Beach, Modern Law Contracts, §§ 81, 1571, 1572. Also, we may say further that such a contract, when analyzed, is found not to come within the statute of frauds. Mansf. Dig., § 3371 (Ind. Ter. Ann. St. 1899, § 2305). Appellee Bruce and his partners received from appellant $12,-566.98, and agreed therefor to turn over their insurance business and assets, including books and accounts outstanding, office furniture and fixtures, good will of said business, to recommend appellant to the various companies of said firm, and to do all reasonable things to aid appellants to secure and continue said business so sold and conveyed, and further warranted and agreed that Bruce and each member of the firm selling such business would retire and quit the insurance business, and would not again engage in said business in the town of Ardmore. Every part of this contract was valid. To say that it was not to be performed within a year was an oral contract, and void under the statute of frauds; or, that any part of it was void under the statute of frauds because not to be performed within a year, is to beg the question. They did turn over the business and did cease the insurance business within the year for the consideration named, and Bruce, within the year, violated [142]*142his contract, and began the insurance business with his co-defendant Butt. Such action on his part ought to be restrained, and injunction is the proper remedy. Beach on Modern Law of Contracts,'§ 1575.

Reversed and remanded.

Townsend and Clayton, JJ., concur. Raymond, C. J., not participating.

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Gill, J.

(after stating the facts). Appellants assign the following error: “The court erred in sustaining the demurrer to the complaint, and in dismissing the cause and [141]*141taxing costs against appellants.” Our statute defines what defects in a complaint may be taken advantage of by demurrer, and all other defects shall be taken by way of answer. The defects sought to be reached in this demurrer are not statutory in any sense, and it was error on the part of the court to sustain the demurrer, and the cause is remanded, with directions to the court below to overrule the demurrer and require the appellees to further plead.

Before leaving the matter we may say in passing that a contract, whether oral or written, such as described in the complaint, is held by all the later authorities to be a valid contract, as not in restraint of trade. 2 Parsons on Contracts (6th Ed.) 911, and notes; Beach, Modern Law Contracts, §§ 81, 1571, 1572. Also, we may say further that such a contract, when analyzed, is found not to come within the statute of frauds. Mansf. Dig., § 3371 (Ind. Ter. Ann. St. 1899, § 2305). Appellee Bruce and his partners received from appellant $12,-566.98, and agreed therefor to turn over their insurance business and assets, including books and accounts outstanding, office furniture and fixtures, good will of said business, to recommend appellant to the various companies of said firm, and to do all reasonable things to aid appellants to secure and continue said business so sold and conveyed, and further warranted and agreed that Bruce and each member of the firm selling such business would retire and quit the insurance business, and would not again engage in said business in the town of Ardmore. Every part of this contract was valid. To say that it was not to be performed within a year was an oral contract, and void under the statute of frauds; or, that any part of it was void under the statute of frauds because not to be performed within a year, is to beg the question. They did turn over the business and did cease the insurance business within the year for the consideration named, and Bruce, within the year, violated [142]*142his contract, and began the insurance business with his co-defendant Butt. Such action on his part ought to be restrained, and injunction is the proper remedy. Beach on Modern Law of Contracts,'§ 1575.

Reversed and remanded.

Townsend and Clayton, JJ., concur. Raymond, C. J., not participating.

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Bluebook (online)

89 S.W. 1018, 6 Indian Terr. 135, 1905 Indian Terr. LEXIS 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/w-s-wolverton-son-v-bruce-ctappindterr-1905.

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