Opinion
October 13, 1936.
November 23, 1936.
Appeals — Review — Questions not raised in lower court — Contract for sale of business — Covenant not to engage in business — Cancellation of contract — Violation of covenant by plaintiff.
In an action of assumpsit on a contract by which plaintiff, a dentist, agreed to sell to defendant, also a dentist, his interest in a business which they jointly conducted at certain premises for a stated sum and agreed not to practice dentistry within a specified radius of the premises for a stated period of time from the date of the agreement, in which action the issue raised by defendant at the trial and submitted to the jury was whether the agreement was cancelled as a result of a mutual understanding between the parties, it was held on appeal from judgment entered on a verdict for plaintiff for the full amount claimed that defendant could not then raise the question that plaintiff was not entitled to recover the full price because he had failed to observe the covenant in the agreement not to compete in the specified territory.
Before KEPHART, C. J., SCHAFFER, DREW, LINN and STERN, JJ.
Appeal, No. 246, March T., 1936, by defendant, from judgment of C. P. Allegheny Co., July T., 1934, No. 1229, in case of Morris Friedlander v. H. N. Shor. Judgment affirmed.
Assumpsit on written contract. Before DITHRICH, J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiff. Defendant appealed.
Error assigned, among others, was refusal of judgment n. o. v.
Carl E. Glock, with him Edward E. Pearlman and Reed, Smith, Shaw McClay, for appellant.
Chas. H. Sachs, of Sachs Caplan, for appellee.
Argued October 13, 1936.
The parties to this litigation are dentists and as such were partners. The dispute between them arises out of their agreement in writing, dated April 20, 1934, in which Friedlander, the plaintiff, agreed to sell his interest in the business which they jointly conducted at 130 Fifth Avenue, Pittsburgh, to Shor, the defendant, for the sum of $5,000, $500 of which was paid at the time of executing the agreement. The balance was to be paid on the first of May, 1934. When that day arrived, Shor did not make the payment. He alleged that the agreement was cancelled as a result of a mutual understanding between them. This Friedlander denied. That is the issue which was raised on the trial and submitted to the jury, which found a verdict in plaintiff's favor for the full amount claimed, with interest.
In bringing this appeal defendant raises a question which was not put forward by him at the trial. The contract provided that plaintiff should not practice dentistry within a radius of 15 miles of the premises 130 Fifth Avenue for a period of three years from the date of the agreement. Plaintiff testified that he continued to maintain the office for defendant's account after defendant refused to make the additional payment. It was run at a loss and early in 1935, as a result of defendant's failure to make good the losses, the landlord sold the equipment and supplies in the office for rent. Both plaintiff and defendant bid at the sale, the plaintiff offering the higher price and becoming the purchaser. He opened an office at 347 Fifth Avenue and moved the purchased equipment there and has since carried on business at that location. When the office at 130 Fifth Avenue was vacated, defendant moved into it and is there conducting his dentistry. The anomaly thus exists that the defendant is carrying on in the firm's old offices at 130 Fifth Avenue, having actually paid only $500 for the right to do so, and plaintiff has the office equipment as a result of his purchase at the constable's sale and is carrying on only two blocks from the old location.
Had counsel, who appeared before us, represented defendant at the trial, he perhaps would have raised the interesting proposition which he now submits, but no such issue was raised at the trial and it is now too late to do so. His contention is that plaintiff is not entitled to recover the full price, he having failed to observe the covenant in the agreement not to compete in the same territory. This was answered by Judge DITHRICH, speaking for the court in banc, in the opinion on the reargument of defendant's motion for judgment non obstante and for a new trial when the question was first presented. The learned judge said: "The chief defense was that plaintiff had released defendant from the terms of the agreement. As this was denied by plaintiff, a question of fact was raised, which was submitted to the jury with instructions that if they found for plaintiff, their finding should be for the whole amount of his claim. Counsel agreed upon a calculation, which was given to the jury, and there was no request for any instruction that the jury should, or could, make any deduction from the amount in mitigation of damages."
Having taken his chance of a favorable verdict on the only position he advanced as a defense, defendant cannot now claim indulgence to set up another defense, in a second trial, which he might have made in the first one: McDermott v. United States Ins. Co., 3 S. R. 604; Kardon v. Crescent Nut Chocolate Co., 100 Pa. Super. 444.
In the view we take of the case, other questions raised are immaterial.
The judgment is affirmed.