IV. Even if properly issued, the injunction should have provided for its termination on January 13, 1964. Sherman v. Pfefferkorn, 241 Mass. 468, 135 N.E. 568; Stokes v. Moore (Ala.), 77 So.2d 331; Wedin v. Atherholt, 298 Mich. 142, 298 N.W. 483; Welles v. O'Connell, 23 Conn. 335, 183 A.2d 287. Watkins, Pyle, Edwards Ludlam, Jackson, for appellee.
As said here there are no allegations of fact in the complaint showing a ground for an equitable accounting. The reference to an accounting in the prayer for judgment obviously does not supply the want of allegations showing grounds for an accounting in equity or convert the legal action for the recovery of money into an equitable action in accounting. Wedin v. Atherholt, 298 Mich. 142, 298 N.W. 483; Gorthy v. Jarvis, 15 N.D. 509, 108 N.W. 39; Heck v. Voelkle, 95 Misc. 692, 160 N.Y.S 903; 1 Pomeroy's Equity Jurisprudence, 5th Ed, p 248. See also 49 CJ p 173.
A breach-of-contract claim for damages cannot be maintained in equity. See Wedin v Atherholt, 298 Mich. 142, 144; 298 N.W. 483 (1941). Plaintiff sought money damages rather than seeking an equitable remedy, thereby precluding use of this doctrine.
However, Edelman Realty Co was decided before the enactment of MCL 445.774a(1); MSA 28.70(4a)(1). Moreover, the passage quoted by defendants cites Wedin v Atherholt, 298 Mich. 142; 298 N.W. 483 (1941), a case construing 1929 CL 16667; MSA 28.61, which declared all agreements not to engage in any employment void as contrary to public policy. See Edelman Realty Co, supra at 652; Wedin, supra at 145.
The Court concluded that the statutory exception did not apply, because no sale or transfer of a business, profession or good will occurred where the defendant had no singular or separate business, profession or good will to sell to the partnership. In another line of cases, Michigan courts have refused to enforce a covenant not to compete contained in an employment contract. E W Smith Agency, Inc v Sanger, 350 Mich. 75, 81; 85 N.W.2d 84 (1957); Wedin v Atherholt, 298 Mich. 142, 145; 298 N.W. 483 (1941); Mackie v State Farm Mutual Automobile Ins Co, 13 Mich. App. 556; 164 N.W.2d 777 (1968). Our resolution of this case requires us to determine the nature of the parties' agreement.
The statute expressly declares that even reasonable, partial or limited restraints on the ability to do so are against public policy. Thus, agreements are void which preclude one from engaging in a particular calling for a limited period of time, Wedin v Atherholt, 298 Mich. 142; 298 N.W. 483 (1941), or which preclude one from engaging in a particular calling within a specified geographical area, E W Smith Agency, Inc v Sanger, 350 Mich. 75; 85 N.W.2d 84 (1957). MCL 445.766; MSA 28.66 provides exceptions where a sale of a business is involved, or the goodwill thereof, or where an employer furnished an employee with a route list.
The above statutory authorization of contractual restraints on competition is an exception to a long statutory and case law history barring all such instruments. See MCLA 445.761; MSA 28.61, Wedin v Atherholt, 298 Mich. 142; 298 N.W. 483 (1941), Stoia v Miskinis 298 Mich. 105; 298 N.W. 469 (1941). Covenants not to compete have always been governed by the rule of reason.
The Michigan cases cited by Federal which have held agreements invalid under the statute concern agreements which directly prohibit an employee from engaging in a certain business. E.W. Smith Agency, Inc. v. Sanger, 350 Mich. 75, 85 N.W.2d 84 (1957); Wedin v. Atherholt, 298 Mich. 142, 298 N.W. 483 (1941); Lyzen v. Lyzen, 221 Mich. 302, 191 N.W. 6 (1922); Grand Union Tea Co. v. Lewitsky, 153 Mich. 244, 116 N.W. 1090 (1908). The present case involves an agreement which is much more indirect.
Under the facts the conclusion may not be avoided that the inhibition against possible competition as set forth in the original undertaking was at the time in violation of the statute and therefore void. Wedin v. Alterholt, 298 Mich. 142, 298 N.W. 483. "As above stated, the clause of the contract here involved was absolute in form.
Los Angeles Co. v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979), quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). See also Wedin v. Atherholt, 298 Mich. 142, 298 N.W. 483 (1941). Federal courts have held that doctrines such as standing and mootness are constitutionally derived and jurisdictional in nature, because failure to satisfy their elements implicates the court's constitutional authority to exercise only "judicial power" and adjudicate only actual cases or controversies.