Summary
In Camenisch v. Allen, 351 Pa. 257, 40 A.2d 420 (1945), and 158 Pa. Super. 174, 44 A.2d 309 (1945), the courts never addressed whether the restrictive covenant was assignable because it was the employer who breached the contract with the employee, not vice-versa.
Summary of this case from All-Pak, Inc. v. JohnstonOpinion
December 7, 1944.
January 2, 1945.
Equity — Injunctions — Preliminary — Refusal.
A preliminary injunction is properly refused where the proofs submitted do not present a clear case in which the plaintiff's right is unquestionable.
Argued Dec. 7, 1944.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and HUGHES, JJ.
Appeal, No. 57, Jan. T., 1945, from order of C. P. No. 4, Phila. Co., Sept. T., 1944, No. 1836, in case of Walter Camenisch et al., trading as Philadelphia Auditing and Calculating Company, v. Howard C. Allen et al. Order affirmed.
Bill in equity.
The facts are stated in the opinion by BROWN, J., of the court below, as follows:
This case was before the court upon plaintiffs' motion for a preliminary injunction, and as the proofs submitted did not present "a clear case where the [plaintiffs'] right is unquestionable", a preliminary injunction was refused. Herr et al. v. Rumisek et al., 303 Pa. 9, 10; Howard v. Goodnough et al., 292 Pa. 547, 549; Oberly et al. v. Frick Coke Co., 262 Pa. 83, 89; Crawford v. Sullivan, 238 Pa. 142, 143.
While refraining "from discussion of the merits of the case at this time" ( Herr et al. v. Rumisek et al., supra, 11), it is to be noted that there was uncontradicted testimony to the effect that the contract between plaintiffs' assignor, Carrie C. Newman, and defendant, Howard C. Allen, wherein the latter agreed not to engage in a similar business for one year in case the contract was "cancelled" by either party or he left her employ, was broken, not cancelled, by her husband who was the real owner of and controlled the business before its purchase by plaintiffs, and that defendant Allen did not cancel the contract or resign but ceased working after the contract was broken and before it was assigned to plaintiffs. Neither Carrie C. Newman nor her husband was called as a witness, and his or her testimony or other proof may present a different situation for consideration at the trial of the case. Thus, plaintiffs, whose rights were no better than their assignor's (Restatement, Contracts, § 167, page 211), failed to show at the hearing for the preliminary injunction that their assignor "was free from fault in the controversy", and so they were "not entitled [on the present stage of the record] to enforce the terms of a contract [which under the evidence thus far adduced was apparently] deliberately violated [by their assignor]". American Ice Co. v. Hunter, 60 Pa. Super. 311, 313. In the cases cited and relied upon by plaintiffs, there was no breach of such a contract by the employer as appears to have occurred in this case.
The motion for a preliminary injunction was, therefore, refused.
Plaintiffs appealed.
Abraham Wernick, for appellants.
Lewis R. Linet, for appellees.
The order of the court below is affirmed at Appellant's cost, on the opinion of Judge BROWN.