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RITZ v. MUSIC (03/18/59)

March 18, 1959

RITZ
v.
MUSIC, INCORPORATED, APPELLANT.



Appeal, No. 217, April T., 1958, from judgment of Court of Common Pleas of Allegheny County, Oct. T., 1954, No. 2399, in case of Alfred R. Ritz v. Music, Incorporated. Judgment affirmed; reargument refused April 24, 1959.

COUNSEL

Harold R. Schmidt, with him Rose, Rose & Houston, for appellant.

Guy L. Warman, with him John A. Metz, Jr., James P. Ifft, Jr., and Metz, Cook, Hanna & Kelly, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Ervin, and Watkins, JJ. (woodside, J., absent).

Author: Gunther

[ 189 Pa. Super. Page 108]

OPINION BY GUNTHER, J.

This was an action in assumpsit brought to recover damages for wrongful repudiation of an agency agreement. An answer and counterclaim for damages for breach of non-competition clause were filed. A jury returned a verdict for $3,500.00 in favor of the plaintiff; it also found in favor of the plaintiff on the counterclaim. Motions for judgment n.o.v. and new trial were refused by the court en banc.

From the evidence, we find that the defendant, Voco-Tele-Music Corporation, was in the business of supplying music to business establishments by telephone, and Alfred R. Ritz, plaintiff, began to work for the corporation in 1946. On May 9, 1951, the parties entered into a written contract of employment to run from June 1, 1951 to May 31, 1956. The contract also provided that for a period of five years after its termination, Alfred R. Ritz would refrain from engaging in any activity similar to or in competition with defendant's business. Under the contract defendant

[ 189 Pa. Super. Page 109]

    agreed to pay plaintiff 10% of net monthly payments made by customers secured by plaintiff and $25.00 per week as an expense allowance. Plaintiff agreed to devote a fair and reasonable amount of his time to defendant's business and not to engage in any other employment. In May, 1952, Mr. Ritz and his wife purchased a motel to which he devoted some of his time. On December 20, 1953, defendant refused to pay Alfred R. Ritz his commission for November, 1953 and discharged him. On November 8, 1954, Alfred R. Ritz began to work for radio station WKJF, a competitor.

At the trial, Ritz waived any right to the weekly expense allowance for the unexpired term of the contract.

The jury awarded $3,500.00 on the basis of the thirty-one month period ...


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