W. W. Roller & Co. v. Ott

The opinion of the court was delivered by

Valentine, J.:

1.consideration; presumption. The questions involved in this case were raised in the court below, by petition and demurrer. The grounds of the demurrer were — first, a defect of parties defendant; 2d, several causes of action improperly joined; 3d, the petition did not state facts sufficient to constitute a cause of action. The court below sustained the demurrer, and the plaintiffs now bring the case to this court. The defendants do not now claim that the demurrer should have been sustained upon either the first or the second ground of the demurrer, but claim that it was and should have been sustained upon the third ground thereof. Hence the only question for us to consider.is, whether the petition stated facts sufficient to constitute a cause of action. The whole cause of action is founded upon the alleged breach by the defendants of a certain agreement in writing alleged to have been made and entered into between the plaintiffs and defendants. The substance of this contract is set forth in the petition, and a copy thereof is attached to the petition and referred to in the petiti°n as “Exhibit B,” although it is not in terms ma¿e a par¿ 0f petition. It is claimed by the defendants that this contract is void, first, for want of consideration, and second, because it is in restraint of trade, and therefore against public policy. These are the only questions in the case. Now, whatever may be the real facts in the case, we must take the facts as stated in the petition as true. And taking such facts to be true, there would not only seem to be a sufficient consideration for the contract, but the contract *615 would seem in all other respects to be valid. "Whether we examine the petition with or without “ Exhibit B,” it so obviously states a sufficient consideration for the contract that we do not think it is necessary to discuss the same. The closing up of the copartnership existing between the plaintiffs and defendants, the final settlement thereof, and dissolution of the same, was a sufficient consideration for the contract. The release by the plaintiffs of $589.62 in their partnership settlement, was a sufficient consideration. But the contract is shown to have been in writing, and therefore, unless the contract or the petition affirmatively shows that there was no consideration, the contract itself will import a consideration. (Fuller v. Scott, 8 Kas., 25; Waynick v. Richmond, 11 Kas., 488, and statutes cited in these two cases.) Mere silence on the part of the petition or contract will not show that there was no consideration. But on the contrary, where the petition does not affirmatively show that there was no consideration it will be presumed prima facie that there was a sufficient consideration.

2. contracts in restraint of trade. We do not think that the contract is void because in the restraint of trade. It merely binds the individuals, C. M. Ott and A. Gottschalk, not to sell any furniture , _ m Ottawa to any person except ~W. W. Roller & Co. The provision of the contract relating to this matter reads as follows:

“In consideration of deduction of $589.62 made by W. W. Roller & Go., as above, said C. M. Ott and A. Gottschalk on their part bind themselves not to sell any furniture in Ottawa to any other parties other than said W. W. Roller & Co., and at the lowest market-prices.”

This contract does not prevent the “ Ottawa Furniture and Wood-Work Company” from selling to others than Roller & Co. in Ottawa. And it does not prevent Ott and Gottschalk from selling furniture to others than Roller & Co. just outside of the city limits of Ottawa. It was probably designed to prevent Ott and Gottschalk from establishing a furniture store in the city of Ottawa. To this extent, and to the extent of binding them not to sell furniture in Ottawa to any *616 one except W. W. Roller & Co., we think the contract is valid.

3 contracts should be explicit, and definite.definite. The last clause of said contract reading, “and at the lowest market-prices,” is probably void for uncertainty. The defendants are not bound to sell furniture to Roller & Co. anywhere, or at any price, and they are certainly not prohibited from selling furniture to any one, or at any price, outside of the city limits of Ottawa. Other'portions of said contract not quoted in this opinion are about as defective as said clause. All contracts of this kind are to some extent against public policy, and hence their provisions should not be extended by construction or implication so as to favor parties desiring to enforce them beyond what their terms would most clearly require. They are not any where, to be looked upon with favor. And where a party desires to enforce one of them, he must simply take what he has in the clearest terms got. That such contracts are valid, we would refer to the following authorities: Dean v. Emerson, 102 Mass., 480; McClurg’s Appeal, 58 Penn. St., 51; Dunlop v. Gregory, 10 N. Y., 241; Beard v. Dennis, 6 Ind., 200; Thomas v. Miles, 3 Ohio St., 274.

The judgment of the court below is reversed, and cause remanded for further proceedings.

All the Justices concurring.