India Tea Co. v. Petersen , 1903 Ill. App. LEXIS 84 ( 1903 )

Mr. Justice Windes

delivered the opinion of the court.

The bill seeks the specific performance of a negative covenant by appellee in the contract, namely, his agreement not to solicit orders from appellant’s customers along the routes traveled by him for the period of one year after he quit its employ.

Tor appellant it is contended that the learned chancellor erred in decreeing a dissolution of the injunction and in dismissing the bill for want of equity. It is claimed that previous decisions of this court, among others Darnell v. Geis, 78 Ill. App. 493, Cahill v. Madison, 94 Ill. App. 216, and Hoops Tea Co. v. Dorsey, 99 Ill. App. 181, are controlling in this case. We think not. In the Darnell case the only question decided was as to whether the contract there in question was in restraint of trade. The Cahill case, while in some respects similar to the case at bar, passes upon a contract materially different from the contract in this case. In the last case we said, among other things, in speaking of the enforcement of the contract, “ Each case must depend upon its own peculiar facts and circumstances.” Also in the Dorsey case the contract, while sustained by the court, differs materially from the one here in question. To review these cases would unnecessarily extend this opinion without profit, as we think this case must be determined solely by the contract here sought to be enforced, which, although it may not be void because in restraint of trade, nor because it is unilateral, as claimed by appellee, neither of which matters we deem it necessary to and we do not decide, we are of opinion that by its terms it is unfair and unconscionable, and for that reason equity will not specifically enforce it in the respect sought by this bill.

By reference to the statement it will be seen that the appellant could terminate the contract by discharging appellee at any time without notice, while appellee is thereby required to give appellant thirty days’ notice in case appellee desired to resign; also that while appellee was to receive $12 per week for his services, and when his deliveries and collections should exceed the sum of $600 per month he should receive in addition to his weekly wages four per cent each month upon the excess over $600 per month, yet appellee was required to guarantee to appellant all goods sold and delivered without collecting money for the same at the time of delivery, and there should be deducted weekly from appellee’s wages $4, which should form a fund, one-half of which should be a guaranty of the provisions of the contract by which appellee agreed that he would not, within one year after leaving appellant’s employ, solicit orders from or make deliveries of teas, coffees, etc., either for himself or any one else to any customers of appellant with whom appellee might be brought in contact while in appellant’s employ, and the other half should be a guaranty fund against which appellant should charge any goods delivered by appellee without payment therefor. The contract further provides that in case appellee should quit the employ of appellant and should solicit orders from appellant’s customers in violation of his contract, then he should forfeit said fund to the extent of $100. We regard these provisioiis of the contract as harsh, oppressive and unconscionable toward the appellee, so much so that we do not deem it equitable to enforce the provision of the contract sought to be enforced by the bill. The provisions of the contract are largely on the side of the employer and very unfavorable to the employe, aside from his weekly wages and commissions, and for that reason we think it is unfair and unconscionable.

It is well settled in equity that before a contract will be specifically enforced, it must be fair, equal and just in its terms, and the situation of the parties must be such that in specifically enforcing it such remedy will not be harsh or oppressive. 1 Story’s Eq. Juris., Sec. 769; 3 Parsons on Contracts (6th Ed.), 361; Lear v. Chouteau, 23 Ill. 39-42; R. R. Co. v. Reno, 113 Ill. 39-43; Espert v. Wilson, 190 Ill. 629-35, and cases cited; Canal Com’rs v. Sanitary Dist., 191 Ill. 326-31.

In the Espert case the Supreme Court say, citing many authorities:

“ When a court of equity is asked to compel the specific performance of the contract, the inquiry may be made whether in equity and good conscience the court ought to specifically enforce it.”

And the court further say in the same case, quoting the following language from McDonald v. Hinnick, 147 Ill. 651, viz:

“ It is the established rule that courts will decree the specific performance of contracts only when, in the exercise of a sound legal discretion, it finds, from all the circumstances, it subserves the ends of justice. It is never decreed as a matter of course even when a legal contract is shown to exist.”

In the Canal Commissioners’ case, very recently decided by the Supreme Court, it is said:

“ The right to a specific performance is not absolute, like the right to recover damages in the action at law. Whether the court will compel a party to do the particular thing he has agreed to do, is a matter of sound judicial discretion, depending upon the circumstances of the particular case. Although a contract may be legal and enforcible, it must be perfectly fair, equal and just, and such as a court of equity will commend, or it will not be specifically enforced.”

Being of opinion that the bill was properly dismissed, the decree of the Circuit Court is affirmed.