This case is before us after reargument after rehearing granted pursuant to filing of opinion on May 5, 1934.
The conclusion and judgment reached and pronounced is now adhered to.
As other reasons for reversing this case, we think the following are applicable: A court of equity should not lend its power to enforce the provisions of an executory contract against one of the parties unless the terms and conditions of the contract are such that the court of equity might enforce *Page 143 at least a part of the terms thereof against the other party. In addition to the agreements quoted in the former opinion, the contract contained four other salient provisions, as follows:
"First: Said first party hereby agrees to and does hereby employ said party of the second part as a Driver (and in such other capacity as may hereafter be determined by said company) to call for and deliver unlaundered and laundered goods and dry cleaning and other merchandise handled by said company, and to make him acquainted with the customers, patrons and agents of said Company, upon whom said Driver should call.
"Second: Said party of the second part agrees to call for and deliver unlaundered and laundered goods, dry cleaning and other merchandise handled by said Company, as he may be directed by said Company, and will account for all merchandise so coming into his hands by reason of this employment, and that he will perform such other and further duties as such Company shall require of him from time to time; that he will use all diligence in his power to make and keep trade for said Company and that he will faithfully work for said Company and drive such trucks as may be directed by said Company; that he will collect the Company's charges for all merchandise entrusted to him for delivery or will return same to said Company; that he will daily turn over to said Company all money collected, and will weekly account for all merchandise entrusted to him for delivery, undelivered and/or uncollected for and keep a just and true account with all customers and said Company; that he will on demand make good any shortages that may appear after being charged with the Company's charges for merchandise entrusted to him for delivery and after being credited with all charges therefor collected and accounted for, and *Page 144 promptly do and perform any and all things pertaining to the business of said Company as he may be directed to by said Company or its authorized agents or managers.
"Third: In consideration of the faithful services to be rendered by said Driver, the Company agrees to allow and pay him weekly, as compensation for the proper fulfillment of this contract, a varying amount arrived at and determined as follows: A sum equal to 15% of cash collected and turned in by said Driver on the first One Hundred Dollars ($100.00) and a sum equal to 10% of cash collected on all cash over said first One Hundred Dollars ($100.00), the same applying on all classes of work done by said Company; said weekly compensation shall be paid by the Company to said Driver immediately after he has made his accounting and remittance to the Company for the preceding week's collections in full. Said Driver shall call upon, solicit from and cater to customers in the City of Miami, Florida, and vicinity.
"Fourth: It is mutually understood and agreed that if the compensation or wages of said party of the second part should be changed hereafter, that whatever such compensation or wages shall be if acceptable to the said party of the second part, the same shall be paid in consideration of the covenants and agreements made by said Driver in this Contract, and all of the provisions of this contract shall be equally binding on said Driver and said Company, although the compensation may be mutually changed."
Now by this Contract the Laundry Company agreed to employ the Driver for no definite period. It agreed to pay him a stipulated amount weekly during the continuance of the employment, unless the compensation should be changed by mutual consent. It agreed that the company might terminate the employment of the Driver for "good and sufficient *Page 145 cause." (That was a needless provision because it was the reservation of a right which would have just as fully existed without its mention in the Contract. Mowbray v. Gould 83 App. Div. 255, 82 N.Y. Sup. 202; St. Louis I. M. S. Railroad Company v. Morgan, 107 Ark. 202, 154 S.W. 519.) And then it is said: "and shall have the right to terminate the employment of said Driver by giving to said Driver one week's notice of the termination thereof or by paying to said Driver such compensation as he would earn in one week's employment; but in no case to exceed Twenty-five Dollars ($25.00)."
Therefore, the Laundry Company agreed to employ the Driver from week to week, paying him a commission on the work which he procured and agreed that it might terminate his services by giving him one week's notice, or by paying him as much as he would earn in one week, not to exceed $25.00. So the Laundry Company bound itself to employ the Driver for no longer period than one week.
It was stated by counsel for the respective parties at the Bar of this Court that the parties to the conract construed the provisions of Section 5 hereinbefore quoted to mean that the employer could for good and sufficient cause terminate the employment without notice and could without cause terminate the employment either on one week's notice or on paying the sum as agreed therein as one week's compensation. That this is a proper construction is borne out by the language of the contract and is supported by the law of construction of such contracts. It preserves the mutuality in this regard, it being provided in the contract that employee may terminate the contract on one week's notice. See Newhall, et al., v. Journal Printing Co., 105 Minn. 44, 117 N.W. 228.
The contract being for no definite period, it constituted *Page 146 a hiring at will. Greer v. Arlington Mills Mfg. Co., 43 A. 609; Boogher v. Maryland Life Ins. Co., 8 Mo. App. 533; Lartora v. Central Fruit Co., 87 N.Y. Sup. 425; Lamibs v. Sloss Iron Co., 118 Ala. 427, 24 So. 108; Louisville, etc., Ry. Co. v. Harvey, 99 Ky. 157, 34 S.W. 1069.
The third section of the contract fixes the area in which the employee may be required to work in the following language:
"Said Driver shall call upon, solicit from and cater to customers in the City of Miami, Florida, and vicinity."
By the terms of Section 6 of the contract, and that is the part of the contract here sought to be coerced by injunction, the employee agreed that for one year immediately after his discharge by said company, or his quitting the employment of said company, he will not either directly or indirectly make known or divulge the names or addresses of any of the customers, patrons or agents of the said company to any person whatsoever.
He further agreed: "that for the space of one year after his discharge or quitting the employment of said company, he will not either directly or indirectly, either for himself or any other person, firm, company, or corporation, call upon, solicit, divert, take away, or attempt to solicit, divert or take away any of the customers, business or patronage of such company upon whom he called or whom he solicited or to whom he catered or became acquainted with at the time of his employment with said company, or with whom he became acquainted or on whom he called or to whom he catered after his employment with the said company."
We concede that in many jurisdictions courts of chancery have recognized provisions of this sort in such contracts to be enforceable by the extraordinary writ of injunction, *Page 147 upon the theory that one who establishes a business is entitled to enjoy the good will thereof and is entitled to the protection of the court of equity from interference therewith by those who have obtained knowledge thereof through employment in the business. But, these courts appear to us to have lost sight largely of the fact that the employee, as well as the employer, is entitled to equitable consideration in a court of equity and to have lost sight of the fact that such contracts are usually dictated by the strong and required thereby to be executed by the weak, that the terms of the contracts are dictated by the employer and required to be executed by the employee who must have employment to provide the necessities of life for himself and his family, and that often these contracts are largely unilateral, providing no obligation on the part of the employer, except to pay the employee that which he actually earns in the performance of the work devolving upon him and, that only so long as the employer sees fit to retain his services.
It occurs to us that a considerable amount of the reasoning upon which courts of equity have based the right to injunction in cases somewhat like this has had its origin in the premises that the employee by reason of his employment had acquired something from the employer in the way of a trade secret which he would for a limited time and in a designated territory be prohibited from using for his own benefit. We do not think such premise is established by the allegations of the bill in this case, or that it was established in many of the reported cases where it has constituted the basis of decisions.
If the driver of a laundry truck gains such friendships and confidence amongst customers that the customers will change laundries when the driver changes employment, it is not because of the use of any property or property rights *Page 148 of the laundry owner, but is because of the driver's God-given, or self-cultivated, ingratiating personality and to this the employer acquires no property interest. A laundry, or a dairy, or an ice plant, acquires no more special right to the patronage of certain customers than does any other tradesman. The time may have been when the use of steam laundries, milk and ice was so limited that the patrons of such were deemed to be folks apart from the masses and, therefore, an acquaintance with them and list of their names and addresses constituted a thing of peculiar value to the tradesmen who acquired such information, but that day is past, if it ever existed, because the patronage of the laundry and the use of ice and milk is almost universal and in any municipality the city directory is a fair list of customers for such enterprises. So neither the laundry, nor the ice plant, nor the dairyman, of this day may claim any special property right in a customer by reason ofdiscovery.
So whether equity will lend its arm to enforce the covenants of this contract by the high writ of injunction must depend upon whether or not the contract is so fair and reasonable as to commend itself to a court of equity. We do not deem it to be so. What does the contract bind the employer to do in behalf of the employees in fair and equitable consideration for the covenant here under consideration? The employer has only agreed to pay the employee that which he may earn by his labor and he is in no way bound to continue that employment and payment for more than one week. There is barely enough consideration to make it a binding legal contract and it is so inequitable, oppressive and unfair that a court of conscience should withhold its aid toward its enforcement.
In the case of H. W. B. Drew Co. v. Harold B. Sanford and Sanford Hall Company, a corporation, 113 Fla. 279, *Page 149 151 So. 545, the complainant, H. W. B. Drew Company, filed a bill of complaint to enjoin the defendant, Sanford, from engaging in the furniture business in Jacksonville, Florida. The bill alleged, amongst other things, that Sanford had contracted and agreed to work for the complainant for a period of five years at a salary of $5500.00 per year and in that contract of employment "covenanted, contracted and agreed under seal that he would not, either directly or indirectly engage in or be connected with any other office furniture, stationery or office supply business in the City of Jacksonville, Florida, for a period of fifteen (15) years from the date of the aforesaid contract."
Paragraph 3 of the bill of complaint was as follows:
"That, from the commencement of the aforesaid term of employment and during the time and term thereof, the defendant, Harold B. Sanford, was connected with the office furniture, stationery and office supply department of the business of your orator. That because of the nature of said defendant's duties, said defendant came daily into direct, personal contact with the customers of your orator. That this daily, direct personal contact with the customers of your orator caused the customers of your orator to look to and rely upon said defendant to advise with and consult as to their needs in office supplies and office furniture. That it was the habit and duty of said defendant to call on the customers of your orator, adjust difficulties, keep the customers satisfied, and act as a contact man and as a link between your orator and its customers. That during the time and term of the employment of said defendant, the customers of your orator upon whose good will your orator is dependent for the success of the business of your orator, so learned and became accustomed to consult, advise with, rely upon and buy from said defendant that the good will *Page 150 of the customers of your orator, which is the property and greatest asset of your orator, has become, in a large measure, the good will of said defendant and has attached itself to said defendant personally. That your orator permitted and allowed this condition to arise and to exist because your orator relied on the covenant of the defendant."
Paragraph 4 of the bill of complaint alleges as follows:
"That on, to-wit, the 30th day of June, A.D. 1930, the term of employment of the defendant, Harold B. Sanford, by your orator under the aforesaid contract of employment ended, and since said date said defendant has not been in the employ of your orator."
The bill then alleges that the complainant complied with and performed all and singular the covenants and agreements required of it to be performed, and paid the salary named in the contract for the full period of the contract. The bill then alleged that Sanford was about to engage in the furniture business in Jacksonville in capacity of general manager of the business of Sanford-Hall Company. The contract is attached to and made a part of the bill of complaint. The contract obligates the employer to employ Sanford for a period of five years at a salary aggregating $5500.00 per year. The employee covenanted as follows:
"(A) To devote his entire time and attention each day during the life of this contract to the performance of his duties for, and to promote the best interest of, the party of the first part.
"(B) That he will not, directly or indirectly, engage in or be connected with any other business, firm or corporation during the life of this contract.
(C) That he will not, either directly or indirectly engage in or be connected with any other Office, Furniture, Stationery, or Office Supply business in the City of Jacksonville, *Page 151 for a period of fifteen (15) years from the date of this contract."
Demurrer to the bill of complaint was filed by Sanford and a separate demurrer was filed by Sanford-Hall Company. The grounds of demurrer filed by Sanford were as follows:
"1. There is no equity in the bill.
"2. Complainant has a complete and adequate remedy at law.
"3. No basis for injunctive relief appears from the allegations of said bill.
"4. It is not shown that there was any consideration for the alleged restrictive covenant.
"5. The alleged restrictive covenant is for an unreasonably long period.
"6. The alleged restrictive covenant is contrary to public policy.
"7. It does not appear that this defendant has been or will be guilty of any bad faith or unfair conduct.
"8. It is not shown that this defendant is taking any unfair advantage or is making any unfair use of his former employment, or that he will do so.
"9. The alleged restrictive covenant is contrary to Section 7953 of the Compiled General Laws of 1927 of the State of Florida.
"10. It does not appear that this defendant had any good will to sell nor that he possesses any peculiar intellectual or other skill or capacity.
"11. It does not appear that this defendant gained knowledge of any trade secret or secret process of complainant which he is using or can use to complainant's detriment."
Of course, the demurrer admitted all the allegations of *Page 152 the bill of complaint. The Chancellor sustained the demurrer and dismissed the bill of complaint.
On appeal, this Court affirmed the order and decree of the Chancellor. That was a much stronger case for the complainant in the court below than is presented here.
We measure the reasonableness and fairness of a contract by what may be done under the terms thereof and not by what has been done. We do not hold this contract void but we hold that it is so unfair and unreasonable as between the parties that a court of equity should not enjoin the breach alleged to have been committed by the defendant in the court below.
On rehearing, we adhere to the conclusion and judgment reached in the former opinion and now reaffirm, for the reasons herein stated, the judgment of reversal.
WHITFIELD, C. J., and ELLIS, TERRELL and DAVIS, J. J., concur.
BROWN, J., dissents in part.