Akers v. Rappe

THE COURT.

This is an appeal from a judgment in favor of the defendant in an action brought by the plaintiff to recover the sum of three thousand dollars as stipulated damages upon a contract between the defendant and the predecessors in business of the plaintiff made in partial restraint of trade.

The facts of the case are substantially these: Carl Rappe, the defendant in this action, for many years conducted in the city of Watsonville a jewelry store known as Rappe’s Jewelry Store. After building up the business he sold his store and the goodwill of the establishment in the year 1905 to a certain firm, and in connection with the sale entered into a written contract agreeing that he would not engage in the same business in the city of Watsonville for the period of twenty years, either for himself or as the employee of another, and that if he did so he would respond in liquidated damages to the extent of three thousand dollars. The purchasers took possession of the store, and after conducting its business for a time the firm dissolved, and one of its members became the owner of the establishment. Later on he sold to the plaintiff herein, transferring by the sale the goodwill of the business, and some time later indorsing and transferring the particular

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contract in restraint of Rappe’s right to conduct a like business in that town. The plaintiff thereafter continued to conduct the jewelry business at its established place. In the month of April, 1912, another jewelry store was opened in Watsonville under the name and sign of “Herbert Rappe, jeweler.” Herbert Rappe was the son of the defendant Carl Rappe; and it is the said defendant’s connection with the opening and conduct of said store which constitutes the gravamen of the plaintiff’s claim in this action.

The evidence educed at the trial shows the following facts with reference to the defendant’s connection, activities, and interest in the establishment and conduct of said store, which facts áre in the main extracted from the statements of the defendant and his son Herbert Rappe while upon the witness-stand, and which are in the record substantially without contradiction. These facts are that the defendant owned the building in which the said jewelry store was opened and conducted under the name of his son; the defendant personally superintended the fitting up of the store; the defendant furnished all the money for the purchase of the stock of goods and personally selected and purchased the stock; the defendant advanced such additional moneys as were needed from time to time in the conduct of the business. The defendant’s son kept no bank account, and the defendant gave his son checks on his own bank account from time to time to pay the bills of the store. The defendant consulted with his son and advised him as to the purchase of goods. At the time of the opening of the store the son of the defendant was not a jeweler' and had no experience or expertness in the conduct of such an establishment. At the time the store was opened an announcement card was prepared, printed, and generally circulated in the community announcing the opening of “Rappe’s Jewelry Store,” and signed “Rappe the Jeweler.” The defendant knew of the preparation and contents and circulation of said circular, and consulted and advised with his son as to the list of people to whom it should be sent. When the business was opened the defendant was the only watchmaker or jeweler connected with it or employed in the store. For a considerable period after the store was opened the defendant openly worked in the store at a bench in the front of the store and facing the show-window, where he vrould be conspicuous to passers-by and customers. During a consider