Grubb Oil Co. v. Garner

Stacy, C. J. The question for decision is whether the covenant in suit runs counter to the anti-monopoly or anti-trust laws. It is not surprising that the parties are in disagreement as to their rights under the instruments in suit. A lessor who has nothing but a filling station to lease covenants, in medias res, with his lessee not to handle or sell from the demised premises, or other premises within a radius of 2,000 feet, any petroleum products other than those of the lessee. It is quite understandable that the lessee might not want the lessor to handle competing products within a radius of 2,000 feet; and such a covenant seems legally permissible, Sea Food Co. v. Way, 169 N.C. 679, 86 S.E. 603, but why the lessor should be asked to stipulate and agree in his lease not to handle competing products “from the demised premises,” is not so readily perceived. He apparently has no right to handle anything from the premises while under demise. However this may be, there is no allegation that the lessor has agreed to purchase petroleum products from anyone — a necessary averment to attract the provisions of G.S. 75-5, subsec. 2. This statute makes it unlawful, inter alia, to sell any goods, wares, merchandise, or things of value upon condition that the purchaser will not deal in the goods, wares, merchandise, articles or things of value of a competitor or rival in busi *501 ness. Shoe Co. v. Dept. Store, 212 N.C. 75, 193 S.E. 9; Fashion Co. v. Grant, 165 N.C. 453, 81 S.E. 606; Standard Oil Co. v. United States, ...... U.S. ....., 69 S. Ct. 1051, denied 13 June, 1949. It is true there is here in a letter written by tbe lessor to tbe lessee, two days after the lease was signed, tbe statement, “since tbe service station bas been sublet to me,” but tbis is all tbat appears on tbe subject of 'a sublease. It falls short of an allegation tbat tbe lessor agreed to purchase petroleum products from tbe lessee on tbe condition denounced by tbe statute. Lewis v. Archbell, 199 N.C. 205, 154 S.E. 11; Wooten v. Harris, 153 N.C. 43, 68 S.E. 898. Tbe only challenged agreement appearing on tbe face of tbe complaint is tbe lessor’s covenant not to handle or sell from tbe demised premises, or other premises within a radius of 2,000 feet, any petroleum products other than tbe products of tbe lessee. Tbis agreement apparently runs afoul of no statute, Hill v. Davenport, 195 N.C. 271, 141 S.E. 752, and hence it is not subject to successful challenge in tbe manner and form here presented. A demurrer admits tbe truth of factual averments and relevant inferences for tbe purpose of testing tbe sufficiency of a pleading. Leonard v. Maxwell, Comr., 216 N.C. 89, 3 S.E. 2d 316. It would seem, therefore, tbat as presently presented, tbe plaintiff is seeking to enforce a permissible restriction in a lease, rather than a forbidden condition in a sales contract. Anno. 83 A.L.R. 1416; 126 A.L.R. 1375 ; 24 Am. Jur. 716. Of course, if it should appear on tbe bearing tbat tbe demise of tbe premises to tbe lessee and its immediate subletting to tbe lessor, for purposes of operation, were but parts of a single transaction, though separately stated, a different situation might arise from what is presently alleged. Nevertheless, on demurrer, we must take tbe pleading at its face value. Anno. 83 A.L.R. 1418. Tbe demurrer was improvidently sustained. In tbe present state of tbe record, tbe injunction should have been continued to tbe bearing. Error and reversed.