The times., 1889-02-08
Thompson VS.. Andrus.

Geo. E. Thompson * Co. VS.. w. H., G.. j.
and G. N. Andrus. This suit was brough
for an injunction compelling the defendant.
10 close up their hardware store. After re
viewing the case, the Court unanimously
gave the following opinion:
We have stated enough of the facts ap
, psaring from this record to show where the
{ equity of the case lies. The contracts
{ entered into between the defendant William
. ii. Andrus and c0mplainants and Charles D.
! Andrus and complainants set forth in the bill
5 binding themselves not to engage in the
4 hardware business, the one i'm any manner
and the other as principal, were legal and
binding. That they have been violated
! both an letter and spirit any one who reads
the record in this case will not have the
, shadow of doubt. The public are solic-
tied to trade at the Andrus hardware store,
they are tod that they can buy better and
) newer goods there at less price than else
where, they are asked to get prices from
other hardware stores and they will sell
them cheaper at the Andrus store. They
We're thus endeavOring to deprive com
painants of the good will which had at
tached to the business and name carried on
by Andrus and which he had conveyed To
cOmplainantS. Customers entering the
hardware store carried on under the name
OF Z. N. Andrus would have foun. the
same genial old gentleman to entertain
them, and If necessary to wait upon them,
| the same active ana energetic young man
managing the business, the same daughter
Of Mr.. Andrus keeping the books -eyely-
thing so far as appear ances were concern, d
We're the same as the establishment was
| before the sale to eompainants except the
new stand. the new goods and the new sign,
and that changed Oniy in the initials. Had
they Investigated far enough they would
have found that the new goods We're pur-
chased with the money which up to the day
of purchase belonged to defendant VIM. IL.
| Andrus.
We cannot shut our eyes, and not observe
| all these facts and circumstances. anu con-
| slider alone the testimony that Mr.. Andrus
was indebted to his wife and merely paid
debt OF long standing and she had right
to invest her money as she chose and to en-
gage in any business she desired to. There
are too many elements of bad faith sur
rounding the transaction. The evidence is
too plain to be disputed that the money was
handed over by the husband to the wife to
enable William II. Andrus and his son to
engage in the hardware business in the city
of OwOssO under cover of her name for the
NCly puiDOoC vi dNOluiliS llhDlllty III tlC
contracts with complainant. 1t was thought
that Charles j. could engage as manager !
because his contract provided that he should /
not engage in the business as principal.
But the testimony shows that the words. aa
principal, were inserted at his suggestion
because as it was written he could not hire
out as clerk and he did not want to be cut /
off from employment as a clerk. The facts
show that he is engaged in the hardware
business as principal. Grant that the mon
ey embarked in the enterprise belonged to
and was furnished by the mother, yet it
was part of the original scheme between
the members of the family that he should
be engaged to manage the business, he has
the whole control and conduct of the busi-
ness, he buys all of the goods, does all of
the advertising, sells the goods and receives
the money, and disburses it. He is the
principal in the management of the busi-
ness. Courts of equity look TO the sub
stance and effect of transactions involved i'm
controversy and will not be deceived by
mere words or forms, when the conduct of
parties contradict the forms and words
used as cover to their transactions. The
conduct of Charles j. Andrus is a clear
violation of the terms of his agreement with
the cOmpanants.
The only question we have had is, how
against Cornelia N. Andrus. She has not
entered into any agreement with complain
ants not to engage in the hardware business
at OwOsso, and unless she has entered into
a combination with her husband and son to
deprive the cOmplainants of the benefit of
their contracts and has involved her rights
with her cO-defendants she ought not to be
enjOined.
1t is however apparent from the testi
mOny that there was complete understand
ing between the defendants to pursue the
plan adopted for the very purpose of avoid
ing force of the contracts with cOmplanants
and hence she cannot be regarded as an
innocent third party.
The old debt which had slumbered for
eleven years, was seized upon as a pretext,
and was demanded by the wife, utterly dis
regarding the fact that he had conveyed or
caused to be conveyed to her property for
which he paid $1,000 and had made improve
ments thereon until it was worth $4,000.
These benefits and gifts bestowed upon her
were not considered, but with the cruelty
of hard hearted creditor she demanded
$4,000 and he paid 1t over for the express
purpose of starting hardware business
with Charles j. as manager. He had
visited different points in the state with q
view of locating i'm business, and she called
|
work and this scheme was entered into and
carried forward under the circumstances
stated.
1t was scheme to violate the letter and
spirit of the contract entered into with COM
plainants, to deprive them of the good will
and custom which they had bargained for,
to compete with and injuriously affect their
trade, and i'm the manner 1t was attempted
to be carried into execution under cover Of
the name and alleged means of &. N. An
drus, so as to deprive complainants Of their
right of action upon their contract, was
fraud upon their rights, and not to be tole-
rated by q court of equity. AS partic-
ipant in the fraudulent scheme COrnela N. I
Andrus has no claims upon the court for :
protection.
The decree of the circuit court must be
reversed with costs of both courts and n
decree entered for complainants agreeable ,
10 the prayer Of the bill.
'When 1 came to my desk last Wednes-