U-Haul Company of North Carolina, Inc. v. Jones , 269 N.C. 284 ( 1967 )

152 S.E.2d 65 (1967) 269 N.C. 284

U-HAUL COMPANY OF NORTH CAROLINA, INC.
v.
Ivey G. JONES, d/b/a Jones Esso Service Station.

No. 277.

Supreme Court of North Carolina.

January 20, 1967.

Plumides & Plumides, by Jerry W. Whitley, Charlotte, for plaintiff.

Richard A. Cohan, Charlotte, for defendant.

SHARP, Justice.

Ordinarily, a temporary injunction will be granted pending trial on the merits (1) if there is probable cause for supposing that plaintiff will be able to sustain his primary equity, and (2) if there is reasonable apprehension of irreparable loss unless injunctive relief be granted, or if in the court's opinion it appears reasonably necessary to protect plaintiff's rights until the controversy between him and defendant can be determined. Western Conference of Original Free Will Baptists, etc. v. Creech and Western Conference of Original Free Will Baptists, etc. v. Milles and Teasley v. Creech, 256 N.C. 128, 123 S.E.2d 619; 2 Strong, N.C.Index, Injunctions § 13 (Supp.).

Plaintiff's affidavit makes out a prima facie showing of its right to the final injunctive relief sought. According to the uncontradicted evidence, plaintiff terminated defendant's contract for cause. Defendant's covenant not to compete after such a termination was (1) in writing, (2) entered into at the time and as a part of the original contract of employment, (3) based on a valuable consideration, (4) reasonable both as to the time and territory embraced in the restrictions, (5) fair to the parties, and (6) not against public policy. It, therefore, meets all the requirements for a valid restrictive covenant. Orkin Exterminating Co. of Raleigh v. Griffin and Orkin Exterminating Co. of Raleigh v. Jones, 258 N.C. 179, 128 S.E.2d 139; Asheville Associates, Inc. v. Miller and Asheville Associates, Inc. v. Berman, 255 N.C. 400, 121 S.E.2d 593. See Annot., Employee—Restrictive Covenant—Time, 41 A.L.R. 2d 15, 179 (1955). Considering the nature of plaintiff's business, defendant's agreement that, when his contract was terminated, he would not compete during the time the current telephone directory was in effect, plus a period of one year thereafter, is a reasonable time limitation. We may take judicial notice that (1) it is the custom of telephone companies annually to issue revised directories of their subscribers, and (2) an uninformed person desiring to rent a trailer would probably turn to the yellow pages index of the telephone directory to ascertain where one could be obtained. Stansbury, N.C. Evidence, §§ 11, 14 (1963).

Defendant's contention that plaintiff is not entitled to injunctive relief because the contract provision for liquidated damages provides an adequate remedy at law is untenable.

"``The mere insertion in the contract of a clause describing the sum to be recovered for a breach as liquidated damages, but which were not intended to be payable in return for the privilege of doing the acts forbidden by the contract, will not exclude the equitable remedy, and is regarded as put there for the purpose of settling the damages, if there should be a suit and recovery for a breach.' There may also be an action in the nature of a bill in equity, for what substantially would be a specific enforcement of the contract and restraining any further violation of it." Tobacco Growers' Cooperation Ass'n. v. Jones, 185 N.C. 265, 284, 117 S.E. 174, 183, 33 A.L.R. 231. Accord, Bradshaw v. Millikin, 173 N.C. 432, 92 S.E. 161, L.R.A.1917 E, 880. See 43 C.J.S. Injunctions § 80(6) (1945); 28 Am.Jur., Injunctions § 93 (1959).

On this record, we think plaintiff was entitled to the temporary restraining order which Judge Bundy issued.

The judgment of the court below is

Affirmed.