Forschner v. Mellick. VERDICT. [Cuyahoga (8th) Circuit Court, January 26, 1909.] Marvin, Winch and Henry, JJ. FRANK FORSCHNER V. W. C. MELLICK. Directing Verdict in Favor Having Burden of Proof Erroneous. It is improper to direct a verdict in favor of a party having the burden of proof. [Syllabus by the court.] ERROR. J. H. Saltman, for plaintiff in error. H. G. Schaibley, for defendant in error. WINCH, J. We think that the plaintiff in error is properly here complaining of the error which was committed by the trial judge. That error consisted in the trial judge directing a verdict in favor of the plaintiff below. There were at least some issues on which the plaintiff below had the burden of proof. If I recollect correctly, there have been former decisions of this court, the titles of which I do not now remember, wherein has been adjudicated the question here presented, and we are inclined to hold to our former decisions, to the effect that it is improper to direct a verdict in favor of anybody having the burden of proof. Now one of the issues of the case raised by the inquiry of the defendant below was whether the plaintiff was a sub-contractor; whether W. C. Mellick had a contract with the city. In that event the burden was upon Mellick to prove that the contract was with him rather than with this partnership, and when the trial court was asked to direct a verdict in his favor without any attempt on his part to prove whether or not he had a contract with the city, it committed error. Evidence should have been admitted on that point and the trial judge should have left that question to the jury to determine. It may be true that the burden was upon the defendant below to file his claim and Cuyahoga County Circuit. file notice with the city, and he may not have introduced any evidence on the subject. You may be correct on that issue: but the trial judge could not direct a verdict for the plaintiff when the burden was upon you to prove that you were the contractor, and for this error the judgment must be reversed. Marvin and Henry, JJ., concur. INJUNCTION-RESTRAINT OF TRADE. [Cuyahoga (8th) Circuit Court, December 28, 1908.] LEWIS T. SCHROEDER ET AL. V. HARRY SCHULTZ ET AL. 1. Contracts in Partial Restraint of Trade Strictly Construed Enforced Only when Plain Violation Appears. Contracts in restraint of trade, though the restraint is partial only, are not looked upon with favor, are strictly construed and are enforced only in clear cases, where material damage to the plaintiff is apparent and no irrevocable hardship will result to the defendant and others. 2. Son Agreeing not to Engage in Named Business not Enjoinable from Assisting Father in Same Line of Business. One who has agreed not to start in the express and moving busi- The prayer of the petition in this case is for an injunction to prevent the defendants from carrying on the moving, expressing and cartage business within a radius of two miles of the corner of Superior avenue and Addison road, N. E., in the city of Cleveland, Cuyahoga county, Ohio. The covenant upon which this action is based is contained in a bill of sale of certain vans, Schroeder v. Schultz. wagons and teams from the defendants to plaintiffs, expressed in the following language: "It is also agreed that for a consideration of said seven hundred dollars, I, Harry Schultz, agree not to start in the express and moving business for a term of five years, within two miles of the corner of Superior avenue and Addison road, N. E.” Upon the hearing we found the fact to be, and so announced, that the business complained of within the forbidden territory is owned and carried on by the father of the defendant, Harry Schultz. Harry is working for his father, taking care of his teams and wagons, driving, and, in one instance, has solicited an order within the forbidden territory. Contracts even in partial restraint of trade are not looked upon with favor, are strictly construed and enforced only in clear cases, where material damage to the plaintiff is apparent and no irrevocable hardship will result to the defendant and others. Harkinson's Appeal, 78 Pa. St., 196 (21 Am. Rep., 9). Under a strict construction of the clause of the contract quoted, defendants have not started in the express or moving business. The only feature of what Harry has done which might be so construed is his soliciting one order within the forbidden territory. There is nothing in the contract to forbid his taking care of horses and driving them, even though they be used in said business. Soliciting orders has been held to be no violation of an agreemnt not to carry on a certain business within certain Timits, the question of whether this constitutes a breach of the contract being regarded as too doubtful. Turner v. Evans, 2 De Gex, M. & G., 740. No material damage to plaintiff was shown in this case, but the situation of defendant's father is such, at this time, that we think he would be put to great inconvenience if deprived of his son's services. The son, too, should be permitted to earn an honest livelihood. We think there was no desire on his part to violate his agreement; if he was morally wrong in soliciting said order, it was a mistake or misconception of his duty, and not an intentional violation of his contract. The current of authorities in this country and England seems to be against enforcing a contract such as we have here, Cuyahoga County Circuit. to the extent of preventing the defendant from working for others in a similar business, unless the contract so specifies. Because plaintiff's right is doubtful and little harm to him is shown, we decline to grant him the xtraordinary relief of an injunction. Petition is dismissed. Marvin and Henry, JJ., concur. ASSIGNMENTS-CREDITOR'S BILL. [Summit (8th) Circuit Court, October 8, 1908.] Marvin, Winch and Henry, JJ. AKRON BLDG. & LOAN ASSN. V. FOLTZ. 1. Issue Raised by Third party Intervening on Creditor's Bill and Claiming the Fund, Triable without Presence of Debtor. In an action in the nature of a creditor's bill to subject a debtor's interest in an estate to the payment of a dormant judgment, where a third person intervenes and by cross-petition claims an assignment to himself of all the debtor's interest in the estate, and the plaintiff answers this cross-petition, alleging fraud in such assignment, the issue thus raised between the plaintiff and the debtor's assignee can be litigated, even without proper service upon the debtor assignee. 2. Assignment for Support of Creditor for Life in Fraud of Creditors. Where the only consideration for the assignment of a debtor's interest in an estate is the agreement of the assignee to support the assignor for the remainder of her life, the transaction can not stand at the expense of the assignor's creditors; she must pay her creditors before she provides for her own future. [Syllabus by the court.] APPEAL. WINCH, J. On February 4, 1907, the plaintiff brought its action in the nature of a creditor's bill against the defendants, Kent O. Foltz, Birdie A. Foltz and the executors of the estate of Joy H. Pendleton, deceased, to subject the interest of said Birdie A. Foltz in said estate to the payment of a dormant judgment which it held against her and her husband. Service on said petition was had on the defendant executors and the husband, Kent, but Birdie was not found. Service on her by publication was Building & Loan Assn. v. Foltz. attempted by notice published once a week for six weeks in the Akron Times, beginning August 2, 1907. This notice contained a short statement of the allegations and prayer of the petition. Meanwhile, on June 3, 1907, Birdie had assigned all her interest in said estate to her brother, Frank W. Rockwell, in consideration of the payment to her by him of $2,000 in cash and the further consideration of the promise and agreement of the said Frank W. Rockwell to provide her with a home and reasonable maintenance and wearing apparel for the rest of her life. On October 29, 1907, on his own motion, said Frank W. Rockwell was made a party defendant to the cause with leave to file an answer and cross-petition, which he did on November 4th, 1907, and in it, by denial, raised an issue as to plaintiff's rights under its alleged judgment. In his cross-petition he set up said assignment to him of Birdie's interest in the Pendleton estate, and alleged that he took and received the same in absolute good faith, and that the executors of said estate had paid over to him all of Birdie's interest therein except $1,500. The prayer of this cross-petition is that the petition be dismissed, that the executors be ordered to pay over said $1,500 to him, and that he be confirmed in his ownership of Birdie's interest in said estate, free of any claim of plaintiff's. On March 30, 1908, the plaintiff filed its amended answer to this cross-petition of Rockwell, alleging that the assignment to him by Birdie Foltz of her interest in the Pendleton estate was in fraud of her creditors, and asking that the same be set aside and that said funds so assigned to Rockwell be applied in satisfaction of its claim. June 20, 1908, Rockwell replied to this amended answer of plaintiff's putting in issue the good faith of the transaction between him and his sister Birdie. Other pleadings were filed by and against the defendant executors and certain motions and demurrers were filed in the cause, which, in the view we take of it, it is unnecessary to mention. The case was finally tried in the common pleas court and judgment being rendered there against the plaintiff, the case is properly here on appeal. We think that the issue now presented for the determination of this court is the one raised by the cross-petition of defendant, |
