
    The Eagle Dairy Co. v. Dylag et al.
    (Decided May 20, 1929.)
    
      
      Mr. Sidney N. Weitz, and Mr. Peter E. Klein, for plaintiff.
    
      Messrs. Boer, Arnold é Tobias, for defendants.
   Vickery, P. J.

This cause comes into this court on appeal from the common pleas court of Cuyahoga county, and was heard upon an agreed statement of facts, and from those facts we learn that the Eagle Dairy Company at some time prior to the beginning of this action, perhaps a year or more, had bought the business of a like concern, to wit, that of one Mike Marian, doing business as the Valley Farms Dairy Company, and had succeeded to its good will and its list of customers. At that time and prior thereto Mike Dylag was in the employ of Mike Marian, doing business as above. Mike Marian having sold his business to the plaintiff company, together with the good will and list of customers, Mike Dylag thereafter became an employee of the Eagle Dairy Company. The record shows that he was not an owner, or in any way connected with Mike Marian, doing business as Valley Farms Dairy Company, except as an employee, and no part of the consideration for the business and good will went to him, and thereafter, as already stated, he became an employee of the plaintiff, the Eagle Dairy Company;

After the sale to the Eagle Dairy Company, Mike Dylag entered into a written contract whereby he would work for the Eagle Dairy Company for the full period of one year, which he did, and for a time thereafter. This contract contained a provision that, in case he left the employment of the Eagle Dairy Company at any time voluntarily, he would not,'for the full period of one year after his severance of connection with the plaintiff company, engage either directly or indirectly in business in the vicinity where the plaintiff company had its business-. From the agreed statement of facts we learn that, after he had worked a year, and some time thereafter, he severed his connection with the Eagle Dairy Company, and immediately commenced to work for the Community Creamery Company, one of the defendants in this action, and that, in so far as he could, he apparently took to his new employer the customers that he had been serving for the Eagle Dairy Company, and it is to enjoin that act of his that this suit is brought.

It is not necessary for us to go into the question at length as to the legality or validity of contracts of this kind, for it is admitted in this lawsuit that the defendant Mike Dylag was, and is, and at all times has been, a minor, that is, that he was a minor when this contract with the Eagle Dairy Company was made, and is still a minor, and the question is whether such a contract as the one at bar can be rescinded by a minor at any time he sees fit before majority. We think the law of the rights and obligations and duties of a minor are set forth, so far as Ohio is concerned, in the case of Lemmon v. Beeman (1888), 45 Ohio St., 505, 15 N. E., 476, which has gone as far as any case in the United States and marks out the rights and liabilities of a minor. That a minor’s contract is a voidable contract goes without saying, and in the case of Lemmon v. Beeman, supra, the Supreme Court of Ohio held that a minor can withdraw from a contract without placing the other party in statu quo, unless he has and can return the article that he purchased, or can put the other party in statu quo; but that is not a condition precedent. If he cannot put the other person in statu quo, he can still withdraw from his contract. Now that is the law of Ohio today.

Applying that doctrine to the instant case, what do we find? In what way could Mike Dylag put the other person in statu quo? It must be remembered that he did not sell the business that the plaintiff acquired, nor had he any interest in it. It must be admitted likewise that he is not disposing of any of the secrets or any of the business that he had got from the plaintiff, for, if we understand this record right, the business that he is now taking to his new employer is business that he took as an employee to the plaintiff company, and it is not the business of the plaintiff company that he is taking away from them.

I speak of this because in the case of Mutual Milk & Cream Co. v. Prigge, 112 App. Div., 652, 98 N. Y. S., 458, upon which the plaintiff relies, an infant was apparently enjoined upon a contract similar in many respects to the one in the instant case, but that case differs from the instant case in this, that there the infant was engaged by his„ employer, and as such employee learned of the customers and the secrets of his employer, and then undertook to take those customers to a new employer, in violation of his contract, and in that case the Supreme Court of New York held that he would be enjoined from doing it, even though he was a minor when he made the contract.

That is not the general law, and the Court of Appeals has held differently from that; but, distinguishing that case from the instant case, one would see that it must be greatly strained to make it apply to the case at bar. There the young man, the infant, an employee, was taking from his employer knowledge that he acquired of the trade, and customers of his employer, as such employee, but, in the instant case, whatever this young man takes away from his employer, the plaintiff, he had knowledge of long before he became an employee of the plaintiff; that is, he is simply taking the customers he previously had and took to his employer, the plaintiff, and remembering that he sold no good will or other property, that he received no consideration for anything of that kind, the ordinary rule does not obtain. Consequently he is in no position to place the other party in statu quo. To enforce the rule against him would be to prevent him from earning a livelihood in the neighborhood where he is best acquainted, and this, too, though he be but a minor and not bound by his contracts.

"We think on the whole record, aside from the difficulty of enforcing an injunction, that the plaintiff is not entitled to an injunction against either defendant, for the reason that it made a contract with an infant, and the infant can rescind that contract at any time before he becomes of age, and, when he retired from the employment of the plaintiff, he rescinded the contract, and was clearly within his rights, for there was nothing that he got from the plaintiff for which he was called upon to put the other party in statu quo, even if it was the law that he must put the other party in statu quo, which is not true, according to the rule laid down in the case of Lemmon v. Beeman, supra.

We therefore can come to no other conclusion than that there must be a decree entered for the defendants.

Decree for defendants.

Sullivan and Levine, JJ., concur.  