Moeller v. Boeke

This appeal was perfected as an appeal on questions of law and fact but, because the appellate court has little control over the submission thereof, presents an unusually strong argument for the discontinuance of such appeals.

Under the provisions of Section 2505.21, Revised Code, such an appeal "entitles the party to a hearing and determination of the facts de novo which shall be upon the same or amended pleadings," and "upon such part of the record made in the trial court as any party may present to the [appellate] court and such additional evidence as upon application in the interest of justice the court may authorize to be taken." Pursuant to this statute, and rules of court, plaintiffs, appellants herein, elected to present the complete transcript of the evidence admitted in the trial court, and there was no objection thereto nor was any application filed by the defendant, appellee herein, to present any additional evidence. At the time the appeal was assigned for hearing on its merits neither the parties nor their counsel appeared and no additional pleadings, stipulations or motions were filed in this court with reference to the submission of the case upon appeal.

However, an examination of the record discloses that the petition prays for an injunction to enjoin "defendant from transporting the bulk shipment of the shippers of milk whose businesses have been and will be sold by defendant," and purports to be based upon the provisions of an alleged contract entered into and existing by and between the defendant, the plaintiffs and a certain "Mrs. A. J. Gels Sons," the latter not being a party to the action. An examination of the transcript shows that the evidence therein was received by the Common Pleas Court at a hearing for a temporary injunction and consists of the plaintiffs' evidence only, there being no evidence offered by defendant. The transcript does not show whether the defendant rested but recites at the conclusion of the plaintiffs' evidence that the prayer for a temporary injunction should be denied. There is nothing further in the record as to any hearing on the issuance of a permanent injunction except the following, which appears in the judgment denying same and dismissing the petition, from which judgment this appeal is taken:

"Thereupon, counsel for plaintiffs, having stated to the court that in view of their conviction that the evidence offered by the plaintiffs at the hearing of their motion for a temporary injunction, and admitted in evidence herein by the court, * * * was sufficient to prove the facts stated in the petition herein, the plaintiffs did not desire to offer additional evidence, and were moving for final judgment against the defendant, and for a permanent injunction, restraining the defendant as prayed in petition, and were offering in evidence the written transcript of said testimony and said exhibit in support of said motion."

It further appears from the record that no answer to the petition has ever been filed by the defendant and that when judgment was entered the time for filing same in the Common Pleas Court had long expired; and there is nothing in the record to show any participation by the defendant in the submission indicated by the foregoing quotation.

As an appeal on questions of law and fact, if one lies here, entitles the parties to a trial de novo on the transcript of the evidence heard in the trial court and such additional evidence as may be authorized to be taken in the interest of justice, and as the defendant has neither objected to the transcript of evidence filed herein nor requested the admission of additional evidence, we must presume that he is agreeable to the submission of this appeal on such evidence as is included in the transcript. However, no answer was filed in the trial court and none in this court, and the defendant is, therefore, in default for answer. A default judgment may be taken against a defendant in an injunction action as well as it may be taken in an action for money only. In taking such default judgment, however, it is discretionary with the trial court to require proof before entering such judgment. 43 Corpus Juris Secundum 946, Injunctions, Section 221; and 31 Ohio Jurisprudence 2d 645, 648, Judgments, Sections 190, 193. If the proof submitted fails to support the allegations of the petition or fails to prove a cause of action a default judgment must, of course, be denied.

The cause of action which the plaintiffs attempt to allege and prove herein, although sounding in injunction, is basically an attempt to require the defendant to specifically perform the contract offered in evidence.

It is stated in 81 Corpus Juris Secundum 480, Specific Performance, Section 31:

"In order to warrant a decree of specific performance thereof, a contract must be definite and certain, and, further, a contract must be free from doubt, and vagueness, as well as from ambiguity, in its essential elements and in all, or at least all its material, terms. Clearness is required. The terms of the contract must be so clear, definite, certain, and precise, and free from obscurity or self-contradiction, that neither party can reasonably misunderstand them, and the court can understand and interpret them, without conjecture and without supplying anything or supplanting vague and indefinite terms by clear and definite ones through forced or strained construction. The terms must be so clear that the court can determine what the contract is and be able to require that the specific thing agreed to be done shall be done. * * *"

I have carefully reviewed the provisions of the contract herein and am of the opinion, as was the Common Pleas Judge, that the same is not sufficiently clear, definite, and certain, to warrant a decree requiring the specific performance thereof, and conclude, therefore, that the petition of the plaintiffs should be dismissed.

If there should be any doubt as to whether such a trial was had on issues of fact by the Common Pleas Court as would authorize consideration of this appeal on questions of both law and fact (LeMaistre, Admr., v. Clark, 142 Ohio St. 1), I am convinced that such doubt would not be significant, for had this appeal been heard on questions of law only, it is my opinion that we would have been required to find for the defendant as a matter of law.

In conclusion, it should be observed that if all the things are read into this contract which my associates claim should be, but which this author is convinced are not justified by the record, specific performance or injunction, as claimed here, would be in the enforcement of provisions thereof in restraint of competition. However, it is basic that a contract in restraint of trade is contrary to public policy and void and a breach thereof will not be enjoined unless the operation of the covenant in restraint of trade is reasonably restricted as to both time and space. 43 Corpus Juris Secundum 564, Injunctions, Section 84. It could be variously claimed, on the basis of the indefinite provisions in this contract, that the restraint applies (1) with respect to only the former customers of Earl Moorman, (2) with respect to any existing or potential customers in the area of the Earl Moorman route, or (3) with respect to bulk tank customers wherever Virgil Boeke might choose to operate; and validity would depend upon which interpretation should be adopted. An agreement such as this, which does not specify the period of time during which the restraint applies, may be enforced only for a reasonable time. This agreement was executed on April 11, 1958, and more than 7 1/2 years have passed; and, in my opinion, even if enforceable as to space, it is no longer enforceable as to time. 17 Corpus Juris Secundum 1114 et seq., Contracts, Section 242 et seq. Finally, the record is clear that defendant, Boeke, is not hauling milk from any customers "transferred" to the plaintiffs under the contract and for which he has been paid by plaintiffs, nor is he serving any customers formerly served by plaintiffs. If the evidence supports any inference, or conclusion, as to his activities with relation to former Moorman customers, the most he is guilty of is unsuccessful solicitation. Without considering any right which the plaintiffs may have in an action at law for damages, it does not clearly appear that plaintiffs have suffered, or will suffer, irreparable injury entitling them to equitable relief.

HOVER, J., of the First Appellate District, sitting by designation in the Third Appellate District.