
    BUNN v. KERNEN.
    Contracts — Sale of Business — Agreement not to.Resume — Injunction Against Violation — Evidence—Sufficiency.
    On a bill to enjoin the violation of an oral agreement not to reengage in a certain business, alleged to have been made at the time of selling defendant’s business to complainant, and for an accounting for damages, evidence examined, and held, that the oral agreement relied upon was not proven.
    Appeal from Gratiot; Searl, J.
    Submitted April 15, 1907.
    (Docket No. 104.)
    Decided October 4, 1907.
    Bill by Charles Bunn against John W. Kernen to restrain the continuation of a certain business, and for an accounting. From a decree dismissing the bill, complainant appeals.
    Affirmed.
    
      Julius B. Kirby, for complainant.
    
      John T. Mathews, for defendant.
   McAlvay, C. J.

Appeal in chancery from a decree in favor of defendant denying complainant relief, and dismissing his bill of complaint. , Complainant was engaged in the ice business in the village of Ithaca, Michigan. Defendant and his brother, known as Kernen Brothers, were engaged in the same business. Mr. W. J. Clark, an agent of complainant, opened negotiations for the purchase of the ice business of Kernen Brothers. These negotiations terminated in a sale and transfer to complainant for a consideration of $1,000. Of this purchase price $50 was paid January 10, 1904, when the terms of the sale were agreed upon, and the balance, $950, on January 20th following, when the writings between the parties were drawn and delivered. These writings consisted of a deed, a bill of sale, and a reservation of the use of cold storage. They were made directly to Clark as security to him for indorsing for complainant to procure cash to pay defendant. Clark afterwards transferred to complainant. After-wards during the year defendant again engaged in the ice business at Ithaca, and complainant filed the bill in this case against him, -praying for an injunction to restrain him from continuing and engaging in any way in the ice business in Ithaca and vicinity, and for an accounting to complainant for damages on account of again entering into said business; complainant alleging that at the time of his purchase of defendant’s business, in consideration of the money paid as aforesaid, defendant orally agreed not to engage again in the ice business at Ithaca.

The case was heard in the circuit court, and relief denied on the ground that the oral agreement relied upon was not proven. A rehearing was granted and the same decision was made. The question to be decided is one of fact. A careful examination of all the evidence in the case shows that the writings between the parties make no mention of the claimed agreement, and the testimony in the case does not establish it. To set forth this evidence, written and oral, will be of no benefit to the profession. We agree with the circuit judge in denying complainant the relief prayed, and dismissing the bill of complaint.

The decree is affirmed, with costs.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.  