Pfeifer v. Rahiser

Opinion by Reeder, J., The only question in this case is one of fact and not of law. The court below found that the existence of the contract upon which the prayer for the injunction in the plaintiff’s bill was predicated is not sustained by the evidence. As this was the only question of fact at issue upon the pleadings, the finding of fact, though embodied in the decree of the court below, is a substantial compliance with the equity rules of the Supreme Court, and the well established rule that a finding of fact in the court below will not be disturbed upon appeal except for plain error applies: Vide Kisor’s App., 62 Pa. 428; Stocker v. Hutter, 134 Pa. 19; Bugbee’s App., 110 Pa. 331; Kutz’s App., 100 Pa. 75; Sproull’s App., 71 Pa. 137. If we should however consider this question as if it were presented to us for primary determination without being controlled by the action of the court below as to its findings of fact, and should yield to the appellant all that he contends for as to the action of this court in this regard, we should be impelled to the same conclusion upon the testimony in this case as that arrived at in the court below. The only question of fact is, did the defendant agree when he sold his well boring machine to the plaintiff not to operate with a similar machine in boring wells in Evans city and its vicinity. The bill alleges that he did. The answer denies it. The two members of the partnership testify to that fact, the defendant denies it. The statement as [358] testified to by both the plaintiffs was a vague, indefinite, oral one, “ not to buy another machine, I will do that, you can take my word for that.” They are corroborated by two other witnesses, one the brother of one of the plaintiffs, who says that Amiel Pfeifer said to the defendant, “ I wouldn’t buy this machine if I knew you were going to buy another.” The defendant said, “You can take my word for it I am not going to buy another machine.” Jacob Rape testifies that Pfeifer and Rahiser met in his presence and the former said to the latter, “ I hear you are getting another drilling machine,” to which Rahiser said, “Yes.” Pfeifer says, “That was not in your contract.” Rahiser says, “ I know it was not, but if I do get a machine I will not bother you people, I will go out of the neighborhood.” It may well be doubted, if this testimony stood alone without contradiction, whether it is proof of a contract on the part of Rahiser not to continue in the business of boring wells so as to conform to the rule of law that the proof to warrant the issuance of an ixrjunction to restrain another from engaging in business xnust be “ clear and indubitable.” Isn’t it entirely consistent with an expression of a then existing purpose only and not a positive coxitract not to do so ? But it is unnecessary to consider this phase of the question further, for the testimony of the plaintiff is met by the evidence of two disinterested witnesses besides the defendant himself directly contradictory of it, one of them a witness called by the plaintiff and one by the defendant. O. L. Sulton says he was by when the conversation testified to by the two plaintiffs with the defendant took place, and his statement as to the contract for the sale of the machine contradicts the testimony of both the witnesses. The testimony of Joseph Rahiser, who was present also at the time the conversation is alleged to have taken place, also contradicts the testimony of the two plaintiffs in regard to' any such contract as that upon which they seek to rest this injunction. The law does not favor contracts of this character, as being in restraint of trade; they are not in accord with public policy. But where they are entered into the courts will enforce them, but the proof of the making must be clear and indubitable. The finding of fact by the court below is therefore in accord with the testimony in the case and the decree was properly entered. Decree affirmed at the cost of the appellant.