Strobeck v. McWilliams

Bikdzell, J.

(dissenting). I dissent. The record in this case discloses the existence of a valid, binding agreement whereby the defendants sold the good will of a certain banking, insurance, and real estate business, at Cogswell, and it also discloses the existence of an intention on the part of the defendants to engage in a course of conduct in the future that would involve a breach of the agreement. As I view the case, the finding of the trial court to the effect that the defendants, up to the time of the commencement of this action, had done no act that was-a breach of the contract, is not borne out- by the record. As I read the record, it shows quite conclusively that the defendants had broken that part of their contract in which they agreed not to engage in the real estate business in competition with the plaintiff, in the territory tributary to the bank, and their announcement of an intention to continue transacting business in the future as in the past constituted a threatened injury which should be enjoined. The evidence, however, going to establish actual damages for past breaches of the contract is not suf-' ficient to warrant a money judgment.

The in junctional order entered in the court below was, however, broader than the contract warranted in that it restrained the defendants from selling land to persons residing within the territory tributary to-the village of Cogswell, without regard to where the land sold was. located. It is my opinion that the order should be so modified as not to prevent the defendants from selling lands to persons residing within. *35the territory tributary to Cogswell, provided such sales are not specially solicited or induced by the defendants through agents or otherwise, and that, as so modified, the order should be affirmed.