
    Morris, d. b. a. Central Market & Dairy, Appellant, v. Retail Clerks' International Protective Assn., Local No. 450, et al., Appellees.
    (Decided September 30, 1940.)
    
      Mr. Alexander Spain, for appellant.
    
      Messrs. Boyle, Boyle & Connor, for appellees.
   Carter, J.

The action below was one for injunctive relief. Plaintiff, appellant herein, attempted to prosecute to this court an appeal on questions of law and fact from the action of the trial court dismissing plaintiff’s petition as against Retail Clerks’ International Protective Association, Local No. 450. The court, however, made a finding in favor of plaintiff and granted a permanent injunction against Joseph McDonald, whom the court found attempted to prevent deliveries of supplies to plaintiff by means of intimidation and coercion. The court also dismissed the case as to the other defendants at the conclusion of plaintiff’s evidence.

A perusal of the record discloses no bond filed, which is essential under the provisions of Section 12223-6, General Code, in order that appellant might have his cause heard de novo. No bond having been given by plaintiff, the words “and fact” are ordered stricken from the notice of appeal and disposition will be made of the appeal as though it were one on questions of law only, pursuant to the provisions of Sections 11564 and 12223-22, General Code.

The record discloses substantially the following: Plaintiff, Jim Morris, d. b. a. Central Market & Dairy, has been engaged in the grocery, meat and dairy business since the early part of May 1938 to the present time. Prior to May 1938, plaintiff was the owner and operator of a market under the name of Central Market, selling groceries and produce. A Mr. Groff operated a meat department. Mr. Groff retired from this department and the entire building was taken over by Morris and reorganized into a market and dairy business. Sometime in February 1937, an agreement was entered into by approximately one hundred retail food-store merchants relative to closing hours. There is no provision in this agreement as to the length of time the same was to run. In fact, the date of its execution is not disclosed by the agreement. However, there was testimony submitted as to the date when it was to become effective and also parol testimony as to the length of time the agreement was to continue. It is urged that this was incompetent testimony. In this we can not concur. The contract was not complete and the testimony aliunde was for the purpose of supplying the omitted parts of the agreement. It in no way modified the terms of the agreement, but was evidence as to what the agreement was at the time. In such a case the parol evidence rule has no application. Metzler’s Trial Evidence, 549, Section 435, and cases therein cited.

The record further discloses that Morris, after he had taken over the meat business, violated the terms of the agreement relative to closing hours. A discussion was had concerning closing hours under the agreement. However, Morris refused to comply further with the agreement. Thereupon, and on or about the 11th of October 1939, a picket was placed in front of plaintiff’s place of business, bearing a placard as follows, “Unfair to Organized Labor Local No. 450, affiliated with A. F. of L.” This action was instituted seeking an injunction restraining the defendants from picketing Morris’ place of business, and, as hereinbefore suggested, the court dismissed the petition as to all of the defendants except McDonald.

Appeal is prosecuted to this court.

There can be no question that Morris signed the contract or agreement known as defendant’s exhibit “A” in which about one hundred food-store merchants agreed to close their stores each week at noon Wednesday until Thursday morning, except when a holiday falls in that week; to close Monday, Tuesday, Thursday and Friday at six p. m. except before a holiday when they would close at eight p. m.; to close each and every Saturday night at eight p. m.; and to close each New Year, Decoration Day, Fourth of July, Labor Day, Thanksgiving, Christmas and Sundays.

There is nothing in the contract to indicate how long the same was to continue. However there is testimony-in the record, and we think properly so, that the agreement was automatically to be in effect one year and the next until the majority saw fit to change it. As we construe this testimony the agreement was to continue until the majority saw fit to change the same, and this seems to be the construction placed thereon as the majority are still adhering to this arrangement. The contract according to the record was to become effective March 1,1937.

One of the vital questions presented is whether a trade dispute existed making lawful picketing proper. The trial court found that a trade dispute did exist in this case, and that there was no unlawful picketing on the part of the Retail Clerks ’ International Protective Association, Local No. 450. The court could, and did, properly find, under the evidence, that plaintiff had breached his agreement entered into between plaintiff and the other parties to the contract, and that resort could be had to proper picketing.

This agreement, if adhered to by the plaintiff, reduced the hours of labor as to the clerks in the employ of food stores affected thereby. If not complied with, their hours of labor were increased. This agreement was for the benefit of all employees coming within its provisions, and of course that included the employees of plaintiff; and the fact that the dairy business was later combined with the sale of food, in our judgment, did not alter the situation. Plaintiff still sold food. No strike was involved.

This appeal is on questions of law, and this court can not reverse unless the finding is so manifestly wrong, as held by some courts, as to shock the conscience of the reviewing court. The evidence before us in this case does not call for a reversal of the case on the grounds that such is against the manifest weight of the evidence or contrary to law. On the other hand, there is ample evidence in the record justifying the finding of the lower court.

Judgment affirmed.

Nichols, P. J., and Phillips, J., concur.  