
    Geo. A. Kessler & Co., Appellant, v. Emanuel S. Chappelle, Respondent.
    
      Injunction to restrain a party from entering into the service of another in violation of his contract to serve the plaintiff— not proper where the services are neither special, unique nor extraordinary — effect of the servant’s recognition of a corporation organized to succeed his original master.
    
    Persons, having the agency for the sale in the United States of the wines manufactured by a French firm, who employ a salesman to sell their goods for a, term of five years under a written agreement by which the salesman agrees that during such term he will not accept a position with any other wine dealer, are not entitled, in the event of the saleman’s announcing his intention of accepting a position with a rival wine dealer during the prescribed period, to an injunction restraining him from so doing, where it does not appear that the-services rendered by the salesman in question were of a special, unique or extraordinary character, but on the contrary it does appear that his employers, employed a large number of other persons to perform similar duties.
    
      Semble, that the recognition, by a party contracting to render services to a firm, of a corporation organized to succeed it binds him to continue to render the services to it.
    Patterson, J., dissented.
    Appeal by the plaintiff, Geo. A. Kessler & Co., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of May, 1902, denying the plaintiff’s motion to continue an injunction_p<mí?<m¿e lite.
    
    
      Edward JLauterbach, for the appellant.
    
      Maurice Meyer, for the respondent.
   Van Brunt, P. J.:

On the 2d of December, 1901, the copartnership of Geo. A. Kessler & Go. were the agents of the firm of Chandon & Co., successors to Moet & Chandon, of Epernay, France, to sell in the United States of America the champagne wines manufactured and produced by said firm of Chandon & Co. Upon said date the •said copartnership entered into an agreement in writing with the defendant, by which agreement it was provided that said copartnership should be exclusively entitled to the services of the defendant for the period of five years, and the defendant agreed that he would not for that period engage himself with any wine house or dealer in champagnes in any capacity whatever, except with said copartnership of Geo. A. Kessler & Co., the defendant further agreeing by such contract, during said time and while in the employment of said copartnership, to devote himself exclusively to such employment, and not to go into any other business whatsoever.

On the 13th of December, 1901, the plaintiff, a corporation, acquired and succeeded to the business of said firm of Geo. A. Kessler & Co., and since said 13th of December, 1901, has been engaged in the business of selling champagne wines as successors to said firm, and the defendant has rendered services to the plaintiff under and pursuant to said agreement, and has accepted from the plaintiff the sums of money set forth in said agreement as compensation for sucli services, and has accepted the plaintiff as the party bound by the contract, for which such services were to be rendered since the 13th of December, 1901.

On the 31st of December, 1901, the defendant entered into a Avritten agreement with Geo. A. Kessler, by virtue of the provisions of Avliich the defendant agreed not to engage in any business of any kind Avhatsoever which might be in anywise detrimental to the interests of the corporation of Geo. A. Kessler & Co., and especially agreed that he Avould not assist, directly or indirectly! any person, firm or corporation importing, selling or otherwise dealing in any champagne wines other than the wines manufactured, produced and sold by Chandon & Co., the agency of which wines was controlled by said corporation of Geo. A. Kessler & Co. The consideration for this agreement with Geo. A. Kessler was the transfer by Kessler to the defendant of twenty-five shares of the capital stock of the corporation of Geo. A. Kessler & Co. The said last-named agreement contained other provisions which it is not necessary here to mention. The evidence also shows that a large number of other persons were employed to perform similar duties by said firm and corporation of Geo. A. Kessler & Co.

The defendant continued in the service of said corporation of Geo. A. Kessler & Co. and performed the duties which were confided to him in a more or less satisfactory manner, and on the 30th of April, 1902, he gave notice to Geo. A. Kessler that the firm of Frederick De Bary & Co., the plaintiff’s most important rival in business, had offered him a salary in excess of that which he was receiving under his contract with the plaintiff and a large cash bonus in addition, if he would leave the plaintiff’s employment and enter their employment and act in furthering their wines to the detriment of the wines dealt in by the plaintiff, and he thereupon announced his intention of accepting that offer and left the plaintiff’s premises and returned said twenty-five shares of stock to Kessler.

Thereupon this action was commenced and a preliminary injunction was applied for. The question upon the motion before the court below was whether such injunction should be continued. The court below denied the motion to continue the injunction upon the ground that the defendant’s services were not special, unique or extraordinary within the adjudged cases, and that injunctive relief must, therefore, be withheld. In this view of the law we concur. There is nothing in these papers which tends to show any special, unique or extraordinary services upon the part of the defendant, except, perhaps, in his large expenditures which seem to have increased his value as a salesman; on the contrary, they show that others occupy the same relations to the firm and are performing similar duties.

While the rule undoubtedly is that the rendition of skilled services to others may be prevented by injunction, yet, we fail to find any rule which allows an injunction of this kind unless there is something special, unique or extraordinary in the services which the defendant under his contract is called upon to render.

The claim upon the part of the defendant, that his contract with Geo. A. Kessler & Co. was a personal one, is undoubtedly well taken; but it appears from the papers that the corporation of Geo. A. Kessler & Co. succeeded the firm of Geo. A. Kessler & Co. almost immediately after entering into this contract, and that the defendant recognized the corporation as the successor of the firm, arid, therefore, by his recognition of the assignment of the agreement by the firm to the corporation he became as much bound to the corporation as he would have been to the firm had it continued.

A variety of cases have been cited, but none of them have any bearing upon the case at bar. The case of Rousillon v. Rousillon (L. R. 14 Ch. Div. 351) is referred to as an authority directly in point, but an examination of that case shows an entirely different state of facts. The defendant in that case engaged in the champagne business which he had agreed not to do; he bought his wines in France, put his own labels on them, with the same name as the plaintiff’s and entered directly for his own personal advantage into the business of importing and selling wines in Great Britain, which, by his contract, he had expressly undertaken to refrain from doing. That case is not similar to the one at bar. The defendant in this action is not going into a champagne business on his own account. He is being hired by another house in his capacity as salesman, and as salesman only.

It is undoubtedly true that the plaintiff has no remedy at law, because whatever damage it may sustain by reason of the breach of this agreement it is almost impossible to estimate, and if there was any principle upon which injunctive relief could be granted, the plaintiff would undoubtedly be entitled to it. But, as already seen, the case is not one in which injunctive relief can be given, and the order appealed from must, therefore, be affirmed, with ten dollars costs and disbursements.

McLaughlin and Laughlin, JJ., concurred; Patterson, J., dissented.

Order affirmed, with ten dollars costs and disbursements.  