
    LYON v. ANTONI et.
    Ohio Appeals, 6th Dist., Williams Co.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    297. CONTRACTS.
    where each party has expended large sums in providing facilities for carrying out terms and agreement is not made to cover any specified time, it can not be legally abrogated, except on reasonable notice, by either party.
    456. EMPLOYES AND EMPLOYEE — 639. Injunction.
    where employe has been wrongfully induced to leave, employer's service and has violated duty of fidelity and loyalty by abandoning such service, he may be perpetually enjoined.
    Appeal from Common Pleas.
    Decree for plaintiff.
    D. A. Webster, A. L. Gebhard and Chas. E. Scott, Bryan, for Lyon.
    W. H. Shinn, Montpelier, H. H. DeMuth, Bryan, and F. S. & J. M. Ham, Wauseon, for ■ Antoni et.
   FULL TEXT.

BY THE COURT.

This action was brought for the purpose of securing an injunction restraining the defendants from selling or furnishing bread and other baked goods to certain customers along certain distributing routes radiating from Bryan. The trial resulted in a judgment and decree for the plaintiff, from which an appeal has been taken.

We, will content ourselves with stating as briefly as may be the conclusions at which we have arrived.

About six years ago the plaintiff and Edward Antoni made an oral agreement for an indeterminate period by which Antoni was to furnish bread to the plaintiff at 9 cents per loaf less 16%%, and the plaintiff was to market the same along a route then established and such other routes as might thereafter be established and furnish trucks and employes to do the marketing. The business has ever since been so conducted, and has increased from one route and 400 loaves per day to 4 routes and 3,000 loaves per day, with a gross profit to plaintiff in 1926 of about $19,000.00 and the same in 1927, out of which amount he had, of course, to provide trucks and drivers, together with the expenses in distributing the bread.

In view of the fact that the plaintiff was obligated to and did provide trucks, employes, etc., and was engaged in the sale and distribution of a product manufactured by the defendant, the ease is different from an ordinary milk-route case, where plaintiffs who market their own product have secured injunctions against their employes or former employes. Each party to the agreement in the present case has expended large sums in providing facilities for taking care of the increased business and each has an interest in the routes and the customers. Any decree of this court, to be equitable, must preserve, as far as may be, the equitable rights of all the parties.

While the agreement was not made to cover any specified time, in view of the large expenditures made by each, in order to conduct the increased business, the agreement could only be legally abrogated on reasonable notice to the other party.

The court finds in this case that- the defendant Antoni undertook to abrogate the agreement on February 12, 1928, without reasonable notice or, indeed, without any notice other than that it was at once abrogated, The court is of the opinion that the reasonable notice which was required in order to permit the termination of the contract should extend to May 19, 1928, inclusive. That period would be reasonably sufficient to enable the plaintiff to re-adjust his business; and the plaintiff is entitled to an injunction in this case against the defendants Edward Antoni and his partner, preventing their interfering with his conduct of the business during that time. If the defendants shall consent to furnish bread to the plaintiff at not more than 9c a loaf, less the agreed discount of 16%%, the plaintiff during the continued existence of the contract is required to market the bread manufactured by them. If they do not choose to furnish bread, the plaintiff shall be at liberty to use bread manufactured by any other' party.

As to the defendants who were employes of the plaintiff, driving, his trucks on the routes in question, and who were wrongfully induced by Antoni and his partner to leave plaintiff’s. service, the court finds that they violated their duty of fidelity and loyalty to the plaintiff in abandoning his service and co-operating with the defendants Antoni, and Mueller, and as against the employes a perpetual injunction is granted.

The case is remanded to the .Court of Common Pleas for further proceedings and to find and determine how much damages, if any, the plaintiff is entitled to recover by reason of defendants’ breaking the contract without giving reasonable notice thereof, with the suggestion that such damages can best be determined after the • expiration of the temporary period fixed therein, towit, May 19, 1928.

Judgment and decree for plaintiff.

(Richards and Williams, JJ., concur.)

LLOYD, J.,

DISSENTING.

I am not convinced that the facts in evidence disclose a cause of action of which a court of equity has jurisdiction. Admittedly the rights and obligations of the litigants must be measured by the character and scope of the contract entered into by and between Antoni and Lyon. Admittedly also the contract is silent as to how long it should be operative and when and how it might be terminated. I assume that even a court of equity may not change .the legal import of a contract by modifying, enlarging or adding to the terms and conditions thereof which are clear and explicit and which the contracting parties were lawfully privileged to determine for themselves. No court, as I view it, has power to compel Antoni to sell -nor Lyon to buy Antoni’s bread, nor to restrain either of them from breaching the contract if either is minded so to do. If either does so, then the other may demand compensation for any injury resulting to him therefrom. The conclusion I have reached does not require a consideration of whether the character of the contract as disclosed by the facts and circumstances in evidence is such as that the law would imply that reasonable notice must be given by one party to the other before the contract could be lawfully abrogated. When lawfully terminated the status of the parties thereto would be exactly the same as before the contract was made. If no notice was required, then no cause of action of any kind' would accrue to anybody. If reasonable notice was required, then a refusal to Comply with the contract or an attempt by either party to terminate it before the reasonable time required had elapsed, would be a breach of the contract for which an action for damages would lie.  