ARCHER, Chief Justice.
This is an appeal from an order of the 126th Judicial District Court of Travis County granting an injunction restraining the appellant from distributing or selling milk or milk products within a territory set out in the order.
The appeal is founded on three points assigned as error and are:
Point No. 1: The error of the trial court in rendering judgment granting injunction for the reason that Appellee had an adequate remedy at law.
Point No. 2: The error of the trial court in rendering judgment granting the injunction because the evidence presented no facts showing that Appellee would suffer irreparable injury, damage, and harm unless the injunction should be granted.
Point No. 3: The error of the trial court in rendering judgment granting the injunction for the reason that the employment contract sued upon is not a valid and binding obligation enforceable against the appellant.
The appellee, Southland Corporation, does business in Austin, Travis County, Texas, under the name Oak Farms.
The parties hereto entered into an agreement on January 13, 1950, by the terms of which Oak Farms, appellee, employed Archy Hartkopf, appellant, to drive a truck for the delivering of milk and other dairy products, upon such route or routes as the employer might designate to serve customers assigned to or secured by the employee or by the employer, to canvass for new customers, etc., and such other duties as may be assigned to employee by employer, for which the employee was to be paid a commission as weekly salary. One section of the agreement is in part as follows:
Section (5) reads:
The appellant contends that the appellee had an adequate remedy at law and that there was no showing of irreparable injury, and that the contract sued on is not a valid obligation enforceable against him.
The appellee takes the position that the contractual covenant is reasonable and necessary for the protection of its business and that it had no adequate remedy at law.
The appellant testified that he signed the agreement with appellee and that this was the only contract he ever had with Oak Farms; that he left the employment of Oak Farms on May 6, 1952, voluntarily and was employed by Comal Cooperative, a company engaged in the sale and distribution at retail of milk or milk products on May 23, 1952, and that he began to contact customers which he had previously served as a driver for Oak Farms and that unless restrained he might or might not continue to solicit customers for Comal Co-op in the territory formerly assigned to him by appellant and served by him while employed by appellant, and that if no injunction was granted that he would go back to the territory and solicit business.
Appellant further testified that he understood that appellee was seeking only to require him to discontinue these acts he had agreed not to do in the contract, and that his agreeing to the terms thereof was a condition of his continuing to work for appellee.
The contract has the following provisions:
The territory in which appellant had been working for appellee is set out in the pleadings and in the judgment is irregular in form and is in the general northeast portion of the city and is not an extensive area.
D. J. McClellan, a witness for appellee and a former employee, his employment having been terminated November 5, 1951, and had about fifteen years experience in the retail dairy business, and was in charge of securing contracts with route drivers, testified that he did not know of any differences between appellant and appellee.
The witness further testified that the principal contact a milk distributing company has with its customers is the route salesman and relied on such drivers to make contacts with prospective customers, and that a driver has an advantage in carrying customers with him to a new company in the milk business, and that the appellant has an advantage in securing customers for Comal Co-op from Oak Farms because of his acquaintance with the customers.
G. H. Casey, General Manager for Oak Farms, testified that a route salesman can take care of his employer's business, or let it get away, and can increase the business. Witness testified that Mr. Hartkopf did take customers from appellee to Comal Co-op; that there is no way you can measure the extent of the damage, the amount that Oak Farms has suffered as a result of the taking of its customers, but over a period would be quite a bit.
We believe that the covenant in the contract that the employee would not
In 24 Tex.Jur. p. 44, the rule is stated:
In McAnally v. Person, Tex.Civ.App., 57 S.W.2d 945, 948, error ref., the Court stated:
In Blaser v. Linen Service Corp., Tex. Civ.App., 135 S.W.2d 509, 511, writ dism., cor. judgm., the Court stated:
We do not believe that the provision in the contract that the forfeiture of the $100.00 deposit as a penalty was intended by the parties as an effort to fix damages and that such provision does not oust equity jurisdiction. Miller v. Chicago Portrait Co., Tex.Civ.App., 195 S.W. 619, error ref.; 28 Am.Jur. 296.
The appellant has cited a number of cases, but we do not believe them determinative of the questions. Some of such cases are: Schneller v. Hayes, 176 Wn. 115, 28 P.2d 273; Super Maid Cook-Ware Corp. v. Hamil, 5 Cir., 50 F.2d 830; May v. Lee, Tex.Civ.App., 28 S.W.2d 202.
There are distinguishing features both as to law and as to facts in the several cases cited by appellant from that existing in this case, and a reading of the cases discloses that each of the opinions recognized the distinctions as between the case the court was dealing with and other cases.
The judgment of the trial court is affirmed.
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