Donohue v. White

Braley, J. The allegations of the bill are, that the plaintiff, who owned and operated a laundry in the city of Worcester, entered into a written contract of employment with the defendant, which among other stipulations provided, that during his employment and for one year thereafter the plaintiff would keep secret, and not divulge to any person, firm or corporation except by express order of his employer, the names, addresses, or any information concerning customers; and that he would not directly or indirectly, either as principal, servant or agent, after the termination of his employment, enter into any branch of the laundry business in Worcester without the plaintiff’s approval, and consent in writing. A copy of the alleged contract is annexed to the bill. It is further alleged that the defendant’s service began February 10, 1919, and terminated December 9, 1922, and that, shortly before leaving, and in violation of the agreement, he notified some of the plaintiff’s customers of his intended departure and solicited their patronage, either as the agent or servant of a rival laundry, and thereafter without obtaining the plaintiff’s consent induced them to transfer their trade to him. The relief sought is, that the defendant be restrained from engaging directly or indirectly “ in any branch of the laundry business in the city of Worcester either as principal, agent or servant for the period of one year from December 9,1922,” and that he “ be restrained from soliciting laundry business on the same route covered by him while in the employment of the plaintiff.” But, the case having been referred to a master, he finds that the contract just described never existed. It is found, however, that during the period beginning February 10,1919, and ending December 9, 1922, the defendant was employed as a solicitor and collector to whom customers of the plaintiff on route four delivered their laundry work, and that, after [482] giving the plaintiff notice that he would terminate his employment, the defendant during the last week of service notified the customers of his intended departure and solicited their patronage. The report states, that seven customers were thus obtained for another laundry, and that the defendant is also indebted to the plaintiff for moneys collected and not accounted for amounting to $48.25. The amended bill asks for payment of this indebtedness. It is settled that the plaintiff may have a decree and execution for his debt quite apart from the main purpose of the suit. Stratton v. Hernon, 154 Mass. 310. See American Stay Co. v. Delaney, 211 Mass. 229, 233. It is contended by the defendant, that, the written contract not having been established, he cannot on the record be enjoined. “It is an elementary rule of equity pleading, that the bill must contain a clear and exact statement of all the material facts upon which the plaintiff’s right to the relief sought depends, and that he can only introduce evidence of such facts as are thus stated.” Drew v. Beard, 107 Mass. 64, 73. “ And, where there is a variance, recovery can be had only on the casé stated in the bill and not upon the case made out by the evidence.” Malden & Melrose Gas Light Co. v. Chandler, 209 Mass. 354, 358. Pickard v. Clancy, 225 Mass. 89, 95. But, even if the defendant made no objection before the master to the introduction of the evidence on which he found the paroi contract, and did not take any exceptions to the report, or appeal from the interlocutory decree confirming it, his contention must be sustained. Drew v. Beard, supra. Malden & Melrose Gas Light. Co. v. Chandler, supra. Arnold v. Maxwell, 223 Mass. 47, 48. It therefore is unnecessary to determine whether, on amendment of the bill, the plaintiff is entitled to injunctive relief on the facts found by the master. It follows, that so much of the decree as awards the plaintiff damages in the sum of $48.25 with interest from December 9, 1922, amounting to ninety-three cents, together with his costs taxed at $18.96, when modified by addition of the words, “ and that execution issue therefor,” is affirmed. Stratton v. Hernon, supra. But in all other respects it is reversed, [483] and the case is to stand for further proceedings in the trial court not inconsistent with this opinion. Ordered accordingly.