Cussen v O'Connor

• Jurisdiction: Ireland
• Judgment Date: 02 May 1893
• Date: 02 May 1893
• Docket Number: (1892. No. 5945.)
• Court: Exchequer Division (Ireland)

Ex. Div.

Before ANDREWS AND MURPHY, JJ.

(1892. No. 5945.)

CUSSEN

and

O'CONNOR

Mills v. DunhamELR [1891] 1 Ch. 576.

Hitchcock v. Coker 6 A. & E. 438.

Baines v. Geary 35 Ch. Div. 154.

Davies v. Davies 36 Ch. Div. 359.

Palmer v. Mallett Ibid. 411.

Parsons v. CotterillUNK 56 L. T. (N. S.) 839.

Rogers v. MaddocksELR [1892] 3 Ch, 346.

Mumford v. GethingENR 7 C. B. (N. S.) 305.

Rousillon v. Rousillon 14 Ch. Div. 351.

Badische Anilin und Soda Fabrik v. Schott Segner & Co.ELR [1892] 3 Ch. 447.

Maxim Nordenfelt Co. v. Nordenfelt 9 Times' Rep. 150.

Proctor v. SargentUNK 2 M. & G. 420.

Baker v. Hedgecock 39 Ch. Div. 520.

Perls v. SaalfieldELR [1892] 2 Ch. 149.

Mallan v. MayENR 11 M. & W. 653.

Allsopp v. WheatcroftELR L. R. 15 Eq. 59.

Printing and Numerical Registering Company v. SampsonELR L. R. 19 Eq. 462.

Middleton v. Brown 47 L. J. Ch. (N. S.) 411.

Rogers v. MaddocksELR [1892] 3 Ch. 346.

Agreement in restraint of trade Reasonableness of contract Injunction Discretion of Court.

LAW REPORTS (IRELAND). [L. R. I. Ex. Div. CUSSEN v. O'CONNOR (1). 1893. April 26, 27. (1892. No. 5945.) May 2. Agreement in restraint of trade-Reasonableness of contract-Injunction Discretion of Court. By agreement in writing, dated. the 24th April, 1889, the defendant was employed as commercial traveller by the plaintiff for ten years, from the 1st April, 1889, upon the terms, inter alia, that the defendant would not within twelve years, from the let April, 1889, or for two years after the termination of his employment, if same should continue beyond ten years, engage in business similar to that carried on by the plaintiff, or act as commercial traveller for any person or body carrying on similar business, provided that such restriction should only extend to such counties in Ireland as the defendant should travel in for the plaintiff at any time during his employÂÂment : Held, a reasonable agreement for the protection of the interests and trade of the plaintiff as employer, and therefore valid. On the 14th November, 1892, the plaintiff dismissed the defendant, and the jury found that the defendant was negligent in the discharge of his duties, but assessed damages in respect of such negligence at 1 only : Held, that the Court, in granting an injunction against breach of the conÂÂtracts by the defendant not to engage in trade similar to that of the plaintiff, had a discretionary jurisdiction to limit the extent of the injunction, and under the circumstances of the case, granted it for two years only, from the date of the termination of the defendant's employment. MOTIONS on behalf of the plaintiff to make absolute, and on behalf of the defendant to discharge an interlocutory injunction granted on the 24th January, 1893. The action was brought for 200, money had and received by the defendant for the use of the plaintiff, and for 315s. for goods sold and delivered by the plaintiff to defendant, and for damages for breach of contract, and for fraudulent misrepresentation, and for an injunction. The plaintiff alleged in his statement of claim-1, that the (1) Before ANDREWS and MURPHY, JJ. VOL. XXXII.] Q. B. & EX. DIVISIONS. 331. defendant was indebted to him in 200 for money had and Ex. Div. received ; 2, in 3 158. for goods sold and delivered ; 3, that by 1893. an agreement, in writing, dated the 24th April, 1889, and ü OSSEN made between J. Cussen (whose interest in the firm herein- O'Conros. after mentioned is now vested in the plaintiff), and the plaintiff, trading as O'Hea, Cussen & Sons, and therein called the said employers of the one part, and the defendant of the other part, it was agreed that the defendant should act as commercial traveller for the said employers, at the salary therein mentioned, and the defendant thereby agreed that he would not within twelve years from 1st April, 1889, engage directly or indirectly in business similar to that carried on by the employers, or act as commercial traveller or agent for any person or body carrying on business of a similar nature to that carried on by the employers, provided that such restriction should only extend to such counties in Ireland as the defendant should travel in for the employers at any time during the employment ; 4, that the defendant entered upon the said employment, and travelled in the Counties of Cork, Kerry, Limerick, Clare, Tipperary, and Waterford, in the course thereof ; 5, that the defendant, in breach of the said agreement, carried on, and is still carrying on, in the counties aforesaid business similar to that carried on by the plaintiff, and is acting, and has been for a long time acting, as commercial traveller or agent in business of a similar nature to that carried on by the plaintiff, and by circular, advertisement, and otherwise, has notified to the public, and more especially to the customers of the plaintiff, that he is so carrying on business and travelling, and by reason of the premises the plaintiff has been and is inj ured in his business and the profits thereof, and the said acts of the defenÂÂdant, if not restrained by order of the Court, will cause further injury to the plaintiff ; 6, that the defendant did not perform his duties as traveller, or transact the business of the plaintiff under the agreement ; and, 7, that the defendant was guilty of fraudulent misrepresentation. The plaintiff claimed under paraÂÂgraphs 3, 4, and 5, an injunction to restrain the defendant from carrying on business, in the Counties of Cork, Kerry, Limerick, Clare, Tipperary, and Waterford, of a similar character to that VOL. XXXII. 2 A 332 LAW REPORTS (IRELAND). [L. R...