Bonsack Machine Co. v. Woodrum , 88 Va. 512 ( 1891 )

Fauntlbroy, J.,

delivered the opinion of the court.

The hill is for specific performance of the covenant contained in the clause of an agreement under seal, entered on the 10th day of July, 1888, between the Bonsack Machine Company, of Salem, Virginia, of the first part, and E. H. Woodrum, of Roanoke, Virginia, of the second part, as follows : “ And it is expressly agreed by the said Woodrum, that he shall, in no event, either directly or indirectly, have anything to do with any other cigarette machine than those of the said company, unless by the full consent in writiug of the said company, and under such contract and arrangements as the said company may provide; and this last provision shall continue for twenty years from this date. The object of latter clause, as to other machines, being to prevent the said Woodrum, after estabdishing to any extent a business for the said company in South America, from forming any combination, directly or indirectly or in any manner whatsoever, by purchase or otherwise, with the owner or controller of any other cigarette-machine. The said Woodrum being the agent of the said company, and the latter not being in a position to protect itself against any arrangement which he might make to the injury of the said company, and on this account it is distinctly agreed that said Woodrum shall not abandon this agency, or cause the said company to revoke it; and after connection with this company has ceased from any cause whatever, in any manner whatever, directly or indirectly, become interested in any other cigarette-machine in South America, or .in any country to which a machine of the said party of the first part had been sent, for twenty years from the date hereof.”

And the further object of the bill is to enjoin the said E. II. Woodrum from acting with or for another company: and to recover damages for his having been connected or interested in and with and for another company, to-wit, the Ludington Cigarette-Machine Company, thereby supplanting and breaking down the interest and business of his principal, the Bonsack Machine Company. As a defence to this suit, Woodrum pleaded that, after the contract sued on and exhibited with the bill, dated July 10th, 1888, was made and delivered, to-wit, on the 6th day of August, 1889, the plaintiff, the Bonsack Cigarette-Macliine Company, for a valuable consideration, to-wit, $20,000, paid to it by the defendant, ‘Woodrum, by a writing dated August 6th, 1889, signed by it, by D. B. Strouse, its president, and by the said Woodrum, which was endorsed on the said contract of July 10th, 1888, contracted and agreed that all matters and things embraced by said contract of July 10th, 1888, were fully adjusted and settled, and the said contract itself was ended and settled, and did thereby agree to release and absolve the defendant from all the liability, obligations and restrictions imposed by the said contract; and the said Woodrum did thereby release the said plaintiff from all liability, obligations and restrictions imposed bv the said’ contract. And that afterwards, to-wit, on the 7th day of September, 1889, the plaintiff, the Bonsack Cigarette-Machine Company, did, by its board of directors, who were thereunto duly authorized by a resolution duly adopted and authenticated by the corporate seal of the said plaintiff’ and the- signature of and certificate of P. A. Krise, its secretary, confirm and ratify the settlement and contract made between the plaintiff by P. B. Strouse, president, and the said Woodrum on the 6th day of August, 1889, as aforesaid.

A motion was made by the complainant to strike out and reject this plea, which motion was overruled. A special replication was then tendered, which alleges that the matter set up in the bill was not intended to be embraced by the contract of August 6th, 1889. This special replication was rejected, but ■ an agreement was made that the cause might be heard and determined upon a general replication as it would be on a good special replication; and the cause was so heard, and the bill dismissed.

We are of opinion that the written agreement of August 6th, 1889, did embrace and abrogate the provision in the contract of July 10th, 1888, which prohibited Woodrum from becoming interested in or connected with the cigarette-machines of other companies. There is no pretence, nor can there be, that there is any patent ambiguity; and. the words are too plain, positive, and pointed to admit the possibility of any occult or latent meaning. “ All makes and things embraced by the within contract have been fully adjusted and settled, and this contract is, for value received, declared ended and settled.” It is contended by the appellant that the £i settlement,” “ receipt,” and ££ release ” expressed and embodied in the explicit and all-embracing terms of the contract of August 6th, 1889, embraced and referred to the settlement, adjustment, and satisfaction of only the money-accounts in controversy between the parties to the contract of July 10th, 1888, and do not affect or embrace the covenant contained in the said contract, which restrained Woodrum, for twenty years from its date, from any connection with or interest in the cigarette-machines of any other competing company.

But, if it be possible to hold that the terms ££ all matters and things embraced by the within contract have been fully adjusted and settled,” relate only to money-accounts between Woodrum, agent, and the Bonsack Cigarette-Machine Company, principal; yet there are the express words added, ££ and this contract is, for value received, declared ended and settled.” The contract itself is abrogated---'£ ended..” What does ended mean? It means final, definite, complete, conclusive. It imports what will be, when the Apocalyptic Angel, with one foot on the Sea and the other upon the Earth, shall lift his hand to Heaven, and- swear, by Him that liveth forever and ever, that there shall be “ Time no longer ” !

It will not then be admissible to offer parol testimony to alter, vary, and contradict the explicit terms of the awful declaration ; and to prove that, non obstante, the unambiguous words themselves, “ Time (still) rolls his ceaseless course,” for some of the prorisions of Man’s tenure upon Earth !

There is no intimation of fraud, or of mutual mistake; and, though in a court of law a covenant cannot be released by parol agreement alone, yet this is an executed written agreement, for valuable consideration accepted and retained by the complainant, who, offering to return none of it, asks a court of equity to say it is not bound, because it did not put its seal to the writing endorsed upon the contract under seal, and which was adopted, ratified, and approved by its own resolution, August 24th, 1889, certified under its seal, and delivered to the defendant, who, then and thereupon, paid to the said company the additional sum of $500; which, with the $20,000 already paid by him to the said company, was the consideration moving from him for his release from the contract itself of July 10th, 1888.

See the following authorities: 7 Waite’s Act. & Def. 454, 455; Pomeroy’s Eq. Jurisp., secs. 70-379-383; Towner v. Lucas, 13 Gratt.; Calhoun v. Wilson, 27 Gratt.; Barnett v. Barnett, 83 Va.; Starkie on Evid, Vol. II, p. 547; Woodward, Baldwin & Co. v. Foster, 18 Gratt., and cases there referred to; Knick v. Knick, 75 Va.; French v. Williams, 82 Va.; Yates v. Central Lunatic Asylum, 84 Va.; Redd v. Commonwealth, 85 Va.; 2 Phillips on Evid. 559-531-958-961-754; and 3 Phillips on Evid., 292 and note; 18 Gratt. 207; 2 Leigh, 630.

We find no error in the record, and our judgment is to affirm the decree appealed from.

Judgment aeeirmed.