Love v. Stidham

Contracts; Joint Obligations'; Questions or Fact fob Juey. 1. Where partners sell their retail grocery business, with a joint obligation not to enter the same business within a limited area and time, and cease to be partners from the time of sale, it does not require the joint act of both obligors to constitute a breach of the obligation, but its violation by one is a violation by both, for which both are and each is liable to the obligee. i2. In order to show breach of an obligation by the vendors of a retail grocery store and business, not to engage in the same business within a limited area and time, it is not necessary for the vendees to show that the vendors retailed all of the articles that had been kept in and retailed from the store sold to the vendees; but only that a material and substantial part of such articles were retailed and sold by the vendors within the prescribed limits, provided that the business so conducted comes within the definition of a retail grocery business; and the vendors are liable if they serve customers within such limits, although they may have no residence, shop, store or place of business therein. 3. Where the vendors of a retail grocery business and store, from which was sold, among other things, butter, cheese, eggs and poultry, at the time of the sale, covenanted with the vendees not to engage in the retail grocery business within a limited time and area, and the vendees, in an action against the vendors to recover damages for breach of the covenant, show that one of the defendants, since the sale, carried on a business of selling such articles within the prescribed limits, such evidence is of a nature proper to be submitted to the jury upon the question as to whether a breach of the covenant had been committed, and if so, as to the quantum of damages; what constitutes a retail grocery business being, to a large extent, a question of fact.

Hearing on an appeal by tbe plaintiff from a judgment-of the Supreme Court of the District of Columbia upon the verdict of a jury directed by the court in an action of covetnant. The Court in its opinion states the case as follows: This was an action of covenant instituted in the Supreme Court of this District by the appellants, Jesse C. and William Thomas Love, against the appellee, Samuel H. Stidham, and James W. Jones; the said Jones not having been served with process, the action proceeded to trial against the said Stidham alone, and who is the sole appellee in this appeal. It appears that Stidham and Jones, prior to the 31st day of March, 1896, were engaged in the retail grocery business, at No. 1800 Fourteenth street, northwest, in the city of Washington, District of Columbia, in which business they sold at retail, groceries, provisions, butter, cheese, eggs, poultry, and other articles usually kept in a retail grocery store, and that they conducted said business under the firm name and style of S. H. Stidham & Co. That on the 31st day of March, 1896, they sold out their store to the appellants, with the entire stock of goods on hand, also two horses, wagons, harness and fixtures, together with 'the good-will of the said business, at and for the sum of $3,300. The contract was duly executed under the hands and seals of the parties, and -the premises were duly delivered to the appellants under and in accordance with the terms of the contract, on the day that the contract was executed. By the contract it was provided, that the party of the first part, that is to say, Stidham and Jones, “ shall not enter into the retail grocery business for the period of five years, within one mile of the store building located as herein set forth, and that the said party of the first part hereby assumes all responsibility for the payment of all debts incurred in said business up to and including March 31, A. D. 1896.” There are five counts in .the declaration, but they state the cause "of action with but slight variation,— the breaches assigned being substantially the same in all the counts. The breach in the last count is substantially as follows:— That, the defendants, Stidham and Jones, in open violation of their said covenant, did, on the 20th of April, 1896, enter into the retail grocery business, to wit, the business of selling at retail, groceries, provisions, butter, cheese, eggs, poultry, meats, vegetables, fruits, marketing, and other articles usually kept .and sold in retail grocery stores, within/ one mile of the store building located as aforesaid, at and in the premises No. 1508 S street, northwest, in the city of "Washington, D. C., and at and in and about a certain stall or stand in a certain market house, known as “ Riggs Market,”' situate on P street, northwest, between Fourteenth and Fifteenth streets, in said city, and have or has been so-engaged therein thence continually to the present time, whereby a large number, to wit, one hundred persons, who prior to said last-mentioned date were customers of the-plaintiffs, having become so by reason of -the said purchase by the plaintiffs from the defendants, and who as such customers had been theretofore accustomed to purchase from-- and deal at the said store of the plaintiffs so- purchased by them as aforesaid, large quantities of groceries, provisions, butter, eggs, poultry, meats, vegetables, fruits,, marketing, and other articles usually kept -and sold in retail, grocery stores in said city, have, instead of making such purchases of the plaintiffs, at the store purchased of the defendants, purchased said -articles of the defendants at -the. place or stall in the market aforesaid, in which place or places of business the defendants carried on the retail grocery business, -and the business of selling at retail, groceries, provisions, butter, cheese, eggs, poultry, meats, vegetables, fruits, etc., articles usually kept and sold in retail grocery stores in said city, since the time aforesaid, whereby the business and trade of tire plaintiffs at the said store, have since the said date, been greatly injured and diminished, and by reason of such breach of said covenant, the-plaintiffs have lost a large amount of trade, many customers,. and large profits, and the property so purchased and paid for 'by them, and especially said good-will, have been rendered -of little value in their hands, and they have thus suffered damage in the sum of $10,000, for which they bring suit. To the declaration the defendant Stidham pleaded several pleas, the defendant Jones not appearing. The pleas are as follows: 1. That he, said Stidham, did not jointly with his co-defendant Jones, nor did he individually or severally, covenant, promise, or agree, in manner and form as the plaintiffs have alleged. 2. That the defendant Stidham did not, with defendant Jones, nor did he individually or severally, at any time since the 31st day of March, 1896, enter into the retail grocery 'business within one mile of premises No. 1800 Fourteenth •street, northwest, in said city of Washington, in manner •and form as alleged. 3. That he did not with said Jones, nor did he individually or severally, on the 20th of April, 1896, or at any time since the 31st day of March, 1896, enter into the business -of selling at retail butter, eggs or poultry, being a branch of the retail grocery business, and being also a branch or portion of the business which the defendants had sold to the plaintiffs, and in which the defendants had been engaged prior to the 31st day of March, 1896, etc., as alleged in the third count of the plaintiff’s declaration, in manner and form as alleged. 4. That the defendant Stidham did not with said Jones, nor did he individually or severally, on the 20th of. April, 1896, or at any time since the 31st day of March, 1896, enter into the business of selling at retail butter, eggs, poultry, cheese, meats, vegetables, marketing or provisions, being a branch of the business -which the defendants sold to the plaintiffs, in manner and form as alleged in the fourth count of the plaintiffs’ declaration. 5. The fifth plea is of former judgment recovered in favor of the defendant Stidham, in an action on the covenant sued on in this case; bnt there was no evidence offered, so far as the present record discloses, in support of that plea, and it must, therefore, be treated as wholly immaterial upon this appeal. Issue was joined upon all the pleas; and upon the trial it was shown in proof, that the defendant Stidham, after the sale of the store and good-will of the business at No. 1800 Fourteenth street, northwest, carried on a business of selling butter, eggs, poultry, and cheese, and that such business was carried on and conducted by said Stidham at stand No. 8 “ Riggs Market; ” and that the plaintiffs lost a considerable-number of their customers by reason of said defendant carrying on said business. The plaintiffs gave in evidence two business cards of the defendant Stidham. The first of which is as follows: “ .S. H. Stidham, dealer in finest grades of Elgin butter, and strictly fresh eggs. Residence: 1508 S Street, N. W. Stand: No. 8, Riggs Market.” The second card is as follows: “ S. H. Stidham, poultry dealer. Dressed poultry a specialty. Residence: 1508 S-Street, N. W. Stand: No. 8 Riggs- Market.” The plaintiffs offered evidence further to prove, that at the time of the sale of the store and good-will of the business to-them the defendant had about seventy-five regular customers who dealt with the plaintiffs for a time after the sale; that very soon thereafter the plaintiffs’ said customers began to drop off, and that the majority of said former customers of Stidham & Co. quit dealing with the plaintiffs from time to time, off and on; that the witness knew and could name about thirty-nine regular customers of said Stidham & Oo. who dealt wholly with the plaintiffs for a time after the-sale, but who entirely stopped dealing with the plaintiffs; that the business comprised dry groceries and green groceries, including butter, eggs, cheese, and poultry. That Stidham, after the sale to the plaintiffs, sold butter, eggs, and poultry from his wagon to certain customers named; that witness saw him at several places delivering goods from his wagon and that he had butter, eggs, cheese, and poultry in it. That the distance of the “ Riggs Market ” from the plaintiffs’ store is three squares, and that of No. 1508 S street, northwest, is one and a half squares'. The witness, on cross-examination, testified that he never knew the defendant Jones to engage in business after the sale to the plaintiffs; that the customers who left the plaintiffs discontinued all purchases from them; that he had never known Stidham to sell sugar, coffee, meats, or any other articles than butter, eggs, cheese and poultry, after the sale of the store and good-will to the plaintiffs. Upon the evidence offered by the plaintiffs, the defendant moved the court to instruct the jury to return a verdict for the defendant, and that instruction was given and the verdict returned for the defendant accordingly. The judgment was entered thereon and the plaintiffs have appealed.