
    H. Nibauer v. H. Oster and M. Oster.
    Argued October 13, 1930.
    
      Before Trexler, P. J., Linn, Gawthrop, Cunningham, Baldrige and Whitmore, JJ.
    
      Barnet Lieberman, and with him Herman D. Levinson, for appellant.
    Evidence in violation of the contract must be clear and indisputable. An injunction should not issue except in a clear case: Harkinson’s Appeal, 78 Pa. 196.
    
      I. Finkelstein, for appellee,
    cited: Sperry & H. Co. v. McKelvey H. Co., 64 Pa. Superior Ct. 57; Belmont Laboratory v. Heist, 300 Pa. 542.
    November 20, 1930:
   Per Curiam,

On March 24, 1928, Harry Nibauer, the plaintiff, entered into an agreement with Henry Oster and Mary Oster to purchase a property together with the goodwill of the delicatessen and grocery business therein. The agreement contained a covenant: “The sellers farther agree not to engage in the same line of business, direct or indirect, either as owners, co-partners or managers, within a radius of ten (10) blocks from 2121 East Chelten Avenue, for a period of five (H) years.”

In June, 1929, a man named Albert Zinger, a violin teacher, purchased a property within two city blocks of the one occupied by the-plaintiff. Shortly after the purchase, a corporation was formed, known as the Stenton Delicatessen. The incorporators were Harry Oster, a son of the defendants, eighteen years of age, the. above named Albert Zinger and a third person, named Fred' Hartman. The court found that “the business at 2101 Stenton Avenue, though carried' on under the name of the Stenton Delicatessen, was an illegal device procured by Henry Oster for the purpose of concealing a violation of the covenant made "with complainant. ’ ’

This conclusion is amply justified by the facts which appear in the following extracts from Judge Fe;&guson’s, opinion: . “The participation of Henry Oster was not nebulous. He took part in the negotiations for the purchase of the property, although the actual agreement was made in Zinger’s name. He went on Zinger’s bond for $10,000; he was active in the store every day during the months of July, August, September, October and November. He gave the boy $500 in cash towards his contribution to the stock of the corporation but the contribution was made in cash and left no tell-tale check behind it. He would have the court believe that he did not know anything about the formation of the corporation or the purchase of the property, and that he permitted Zinger and his son, neither of whom had any experience in that business, to purchase a valuable property and its stock and goodwill, without advising or consulting them. In addition, he purchased goods from the supply houses, being crafty in his dealings with them and telling them that he had to be very careful and that he was forming a corporation. Most of the salesmen-never saw the boy or Zinger in the store, but took their orders and received their money from Henry Oster. . Oster contradicts these men and the Trial Judge accepts their story and refuses to credit his....... Henry Oster is both directly and indirectly engaged in the line of business at 2101 Stenton Avenue which he covenanted that he would not do. ”

We do not think that the subject needs any further elaboration. The order restraining Henry Oster from further violating the' .agreement, either acting personally or under cover .of the Stenton Delicatessen or Harry Oster, was properly entered.

The decree is affirmed, appellant to pay.the costs. .  