of 1940, which he claims sets the 1940 contract aside, and an anticipatory breach of that limiting agreement by a proposed change of his employment compensation in October, 1947. No consideration needs to be given to the 1942 agreement because it enlarged rather than diminished his compensation and did not mention any change in the limitation of the 1940 agreement. The main contention relates to the alleged anticipatory breach.
For several years prior to 1944, Hill and Eichelsbacher were plaintiff's only regular salesmen in the Pittsburgh District. Hill, in addition to his duties as manager, had a portion of the district allotted to him wherein he functioned as a direct salesman. After Eichelsbacher enlisted in the Navy he had the whole district for about two years, and as a result his income was considerably increased. After Eichelsbacher's return in 1946, he still had a part of the territory as a salesman, but complained about some reduction of his income. The anticipatory breach of his contract that he asserts against the plaintiff consisted in the expressed desire of the company that he act more in the capacity of manager of the Pittsburgh District and less as a direct salesman. It urged that the temporary arrangement of the 1942 agreement, made necessary by the war and the subsequent inability to obtain desirable salesmen and Ediphones, be set aside and a return made to the mutual intentions of the plaintiff and Hill at the time the latter was appointed manager of the district. He was requested to appoint and train four additional salesmen in order that an increase in the business of the plaintiff might be obtained. By this request he was not deprived entirely of his right to make direct personal sales, but was required to look to a percentage of the compensation of the other agents to offset a reduction in his gain from personal sales. This request was not a breach of the contract between the plaintiff and Hill, but was in accord with it and the known policy of plaintiff. See Exhibit B, contract dated March 23, 1942.
The letter of October 22, 1947 (Defendants' Exhibit D), upon which the alleged breach is now based, was evidently not the reason why defendants Hill and Eichelsbacher left the service of the plaintiff. See letter from The Gray Manufacturing Company, dated October 22, 1947 (Plaintiff's Exhibit 7), which confirmed 'the verbal agreement which has evolved as a result of your discussions during the past months with Mr. E. T. Herbig, Jr., representative of The Gray Manufacturing Company and its subsidiary, Audograph Sales Company, Inc. * * * it is our mutual intention that you shall represent the Audograph dictation machine exclusively in the so-called Pittsburgh or western Pennsylvania territory.'
No breach of his contract by the plaintiff being established, Leonard Hill will be restrained from further violation of his 1940 limitation agreement pending final hearing and judgment.
Immediately after resigning his employment with plaintiff, John Martin accepted employment by the Gray Manufacturing Company. It is quite evident that his action was pursuant to the agreement then existing between that Company and Hill and Eichelsbacher. As a defense to the instant complaint Martin sets up an agreement between plaintiff and the International Machinists' Union on behalf of Martin. By that agreement the hours and labor conditions were fixed, but no such provision was contained as that by which Martin in the 1940 agreement bound himself to non-employment with any competitor of plaintiff for a fixed time. It is claimed that the Union agreement replaced in toto the 1940 contract. With this proposition the court finds itself unable to agree. The Machinists Union, representing Martin, had the right to contract for his hours and conditions of labor, but that right did not deprive him of all right to enter into agreements which affected him personally and not as a member of the union. Such an agreement was the agreement to not accept employment from a competitor for a limited time after ceasing employment with plaintiff. See J.I. Case Co. v. National Labor Relations Board, 321 U.S. 332, 339, 64 S. Ct. 576, 88 L. Ed. 762. The Union agreement and the 1940 agreement occupied entirely different fields.
John Martin will be enjoined from violating his 1940 agreement with plaintiff until final hearing and judgment in the instant action.
When the issues herein are considered, the situation of J. W. Eichelsbacher differs from that of the other defendants. Counsel for plaintiff contends that Eichelsbacher's service with the plaintiff was continuous despite his two years service in the Navy, and that he was only on furlough during his absence. In this counsel is not quite correct. True, Eichelsbacher was entitled to his job upon his return from service, but only if he applied therefor within a limited time prescribed by statute. From the testimony it appears that he was treated as a new employee after his return. As a new employee he was allowed to receive compensation from the Government with the knowledge and aid of the plaintiff, as appears from the proof to date. If plaintiff allowed him the guise of a new employee to the Government, it cannot well now claim there was no separation between his former and his late services.
The present proof does not establish such a clear state of facts as would justify a preliminary injunction, and the prayer for it will be denied.
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