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ROSS v. HOUCK (11/12/57)

November 12, 1957

ROSS
v.
HOUCK, APPELLANT.



Appeal, No. 215, Oct. T., 1957, from judgment of Court of Common Pleas of Blair County, June T., 1953, No. 25, in case of Walter F. Ross v. Carl M. Houck. Judgment affirmed.

COUNSEL

Bernard Jubelirer, for appellant.

T. Dean Lower, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Hirt

[ 184 Pa. Super. Page 449]

OPINION BY HIRT, J.

The defendant, on April 30, 1949, owned a tract of land in Logan Township fronting on State Highway Route 220, between Tyrone and the City of Altoona, in Blair County. On the land he, for some years had operated a trailer park, a grocery store and a gasoline service station. On the above date he and his wife conveyed the land together with all of the buildings and improvements to the plaintiff and his wife. A bill of sale was also executed by them at the same time transferring title, to plaintiff and his wife by entireties, in all of the merchandise, stock in trade and fixtures in the grocery store and the service station. The total consideration paid was $25,000. Contemporaneously with the delivery of the deed, the defendant and wife, upon good legal consideration, entered into a written agreement with the grantees under the terms of which they agreed that they "will not for the period of five (5) years from the date hereof, [i.e., until after April

[ 184 Pa. Super. Page 45030]

, 1954] enter into any competing business with the parties ... [plaintiff and his wife] within a radius of three (3) miles of the location of said land and business now being sold ..." by them.

In December 1952 defendant's son took title to a tract of land fronting on Route 220 about 1/4 of a mile south of the plaintiff's land. Since January 1, 1953, this land has been developed and used as a trailer court in competition with the business of the plaintiff. Alleging that title to the land was taken in the name of defendant's son as a subterfuge and that defendant is the actual owner, plaintiff brought this action for damages resulting from the competing business allegedly conducted by the defendant in violation of the restrictive covenant of his agreement. Both the wife of the plaintiff and the wife of the defendant had died prior to the date when this action was brought. The jury found for the plaintiff in the sum of $2,000. This the defendant's appeal, is from the refusal of judgment n.o.v. in his favor and, in the alternative, the refusal of a new trial.

Restrictive covenants, although in restraint of trade are enforceable if reasonable. Restatement, Contracts, ยง 516; Harris Calorific Co., 345 Pa. 464, 29 A.2d 64. An agreement in restraint of trade which is limited in either space or time is prima facie good. Sklaroff v. Sklaroff, 263 Pa. 421, 106 A. 793; Plunkett Chemical Co. v. Reeve, 373 Pa. 513, 95 A.2d 925. The restrictive covenant in the present case was valid because reasonable and the testimony clearly convicts the defendant of a breach of his agreement.

It was defendant's check for $2,000 that supplied the down payment on the purchase of the land, although title was taken in the name of the son, who gave a $4,000 mortgage for the remaining purchase price. ...


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