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Nibauer v. H. Oster and M. Oster

Superior Court of Pennsylvania
Nov 20, 1930
100 Pa. Super. 86 (Pa. Super. Ct. 1930)

Opinion

October 13, 1930.

November 20, 1930.

Equity — Agreement in restraint of trade — Violation of — Injunction — Evidence.

In a bill in equity to restrain the violation of an agreement in restraint of trade, the evidence established that the defendant and his wife had been the owners and proprietors of a delicatessen and grocery business and that they had sold both the property and the business to the plaintiff. The defendant and his wife at the time of the sale entered into a contract in which they agreed "not to engage in the same line of business, directly or indirectly, either as owners, co-partners, or managers, within a radius of ten blocks" of the store sold to the plaintiff for a period of five years.

Aproximately three months after the execution of the contract, a property within two blocks of the plaintiff's store was purchased and later occupied by a corporation formed for the purpose of conducting a delicatessen business. The plaintiff's testimony disclosed that the defendant's minor son was an incorporator of the corporation; that the defendant had given his son a sum in cash toward his contribution to the capital stock; and that the defendant was active in the incorporation and management of the store. The defendant denied having any knowledge of the formation of the corporation or that he violated the agreement entered into with the plaintiff.

In such case the order restraining the defendant from further violating the agreement will be affirmed.

Appeal No. 190, October T., 1930, by Henry Oster from decree of C.P., No. 3, Philadelphia County, June T., 1929, No. 5947, in the case of Harry Nibauer v. Henry Oster and Mary Oster.

Before TREXLER, P.J., LINN, GAWTHROP, CUNNINGHAM, BALDRIGE and WHITMORE, JJ. Affirmed.

Bill in equity for an injunction. Before FERGUSON, P.J.

The facts are stated in the opinion of the Superior Court.

The court by decree restrained Henry Oster from further violation of the agreement. Henry Oster appealed.

Error assigned, among others, was the decree of the court.

Barnet Lieberman, and with him Herman D. Levinson, for appellant. — Evidence in violation of the contract must be clear and indisputable. An injunction should not issue except in a clear case: Harkinson's Appeal, 78 Pa. 196.

I. Finkelstein, for appellee, cited: Sperry H. Co. v. McKelvey H. Co., 64 Pa. Super. 57; Belmont Laboratory v. Heist, 300 Pa. 542.


Argued October 13, 1930.


On March 24, 1928, Harry Nibauer, the plaintiff, entered into an agreement with Henry Oster and Mary Oster to purchase a property together with the goodwill of the delicatessen and grocery business therein. The agreement contained a covenant: "The sellers farther agree not to engage in the same line of business, direct or indirect, either as owners, co-partners or managers, within a radius of ten (10) blocks from 2121 East Chelten Avenue, for a period of five (5) years."

In June, 1929, a man named Albert Zinger, a violin teacher, purchased a property within two city blocks of the one occupied by the plaintiff. Shortly after the purchase, a corporation was formed, known as the Stenton Delicatessen. The incorporators were Harry Oster, a son of the defendants, eighteen years of age, the above named Albert Zinger and a third person, named Fred Hartman. The court found that "the business at 2101 Stenton Avenue, though carried on under the name of the Stenton Delicatessen, was an illegal device procured by Henry Oster for the purpose of concealing a violation of the covenant made with complainant."

This conclusion is amply justified by the facts which appear in the following extracts from Judge FERGUSON'S opinion: "The participation of Henry Oster was not nebulous. He took part in the negotiations for the purchase of the property, although the actual agreement was made in Zinger's name. He went on Zinger's bond for $10,000; he was active in the store every day during the months of July, August, September, October and November. He gave the boy $500 in cash towards his contribution to the stock of the corporation but the contribution was made in cash and left no tell-tale check behind it. He would have the court believe that he did not know anything about the formation of the corporation or the purchase of the property, and that he permitted Zinger and his son, neither of whom had any experience in that business, to purchase a valuable property and its stock and good-will, without advising or consulting them. In addition, he purchased goods from the supply houses, being crafty in his dealings with them and telling them that he had to be very careful and that he was forming a corporation. Most of the salesmen never saw the boy or Zinger in the store, but took their orders and received their money from Henry Oster. Oster contradicts these men and the Trial Judge accepts their story and refuses to credit his...... Henry Oster is both directly and indirectly engaged in the line of business at 2101 Stenton Avenue which he covenanted that he would not do." We do not think that the subject needs any further elaboration. The order restraining Henry Oster from further violating the agreement, either acting personally or under cover of the Stenton Delicatessen or Harry Oster, was properly entered.

The decree is affirmed, appellant to pay the costs.


Summaries of

Nibauer v. H. Oster and M. Oster

Superior Court of Pennsylvania
Nov 20, 1930
100 Pa. Super. 86 (Pa. Super. Ct. 1930)
Case details for

Nibauer v. H. Oster and M. Oster

Case Details

Full title:H. Nibauer v. H. Oster and M. Oster

Court:Superior Court of Pennsylvania

Date published: Nov 20, 1930

Citations

100 Pa. Super. 86 (Pa. Super. Ct. 1930)