Roper v. Pryor

In October, 1914, plaintiff was engaged in the law practice in Butler county. Defendant had just completed a course in a law college and been admitted to the bar. Plaintiff employed defendant, at a salary not in excess of that paid to an ordinary clerk. Their contract was reduced to writing, and by its terms defendant agreed, “in consideration of this employment contract and the salary herein agreed upon, ’ ’ that upon the termination of the contract he would not, for a term of ten years from such termination, enter into or engage in the practice of his proféssion in Butler county. ■

Defendant remained with plaintiff until August, 1916. Shortly thereafter' he opened an office in David City, the county seat of Butler county. In November following plaintiff brought this action, based upon the contract mentioned, to restrain defendant from following his profession in Butler county. A permanent injunction was granted, and defendant appeals.

*710Actions of this kind are not uncommon in some lines of business, but, after a diligent search, the writer finds no case where, under circumstances such as disclosed by this record, an established lawyer has sought, in a court of equity, to' withhold from a brother practitioner, who has served as his clerk and assistant, the opportunity, of engaging in his- profession. However, we are not asked to pass upon the validity of the contract, of the reasonableness of its restrictive terms. The point presented by defendant is that the breach in this case is a-mere technical one, for-which plaintiff should be left to his remedy at law. While the circumstances in this case áre unusual, in that defendant did not have an opportunity to come in close contact with the clients of plaintiff,- and that, up to the time of suit, none of such clients had gone over, or threatened to go over, to defendant, yet it seems that the extent of the damage is not a subject of inquiry. 14 R. C. L. sec. 94, p. 394. The fact' that there was a continuous breach, and that plaintiff was entitled to recover at least nominal damages, was sufficient for the assumption of jurisdiction and the granting of relief. Brown v. Kling, 101 Cal. 295. See, also, Freudenthal v. Espey, 45 Colo. 488, 26.L. R. A. n. s. 961, and note in 15 Ann. Cas. 696 (Simms v. Burnette, 55 Fla. 702).

It follows that the decree of the district court should be

Affirmed.