Jan. 1894.] Opinion of the Court-DUNBAR, C. J. value is that of the father and the son, one of them testifying that the property was worth $490, and the other that it was worth $450. This corresponds with the allegations of the complaint also, and in the face of this testimony, absolutely uncontradicted by any other, that particular finding of the jury seems to be entirely without warrant. However, there is another special finding of the jury, viz.: That L. B. Eicholtz, at the time of the alleged sale to him in March, did not know that the conveyance was made with intent to hinder, delay or defraud the creditors of his father. While the finding in this case may not seem to us to be justified, considered with reference to the weight of the testimony, yet there was testimony on that subject which, if the jury believed it, would entitle them as a legal proposition, to render the special verdict aforesaid, and as that was one of the controversies in the case concerning which the testimony was conflicting, it was the special province of the jury to determine that fact in the case, and having determined it, we do not feel justified in disturbing their verdict. In the light of that special finding we say that, conceding appellant's contention to be true, it affirmatively appears that the instruction was harmless; for the purchaser was without the knowledge that the vendor in The tended by the sale to defeat or defraud his creditors. same thing may be said of the alleged error of the court in refusing to give instructions 8, 10 and 11, asked by the defendant. The other instructions asked by the defendant were more in the form of arguments than instructions, and all of them which we think properly stated the law were given by the court on its own motion, though in different phraseology, and we think the charge was a fair statement of the law governing the case. The judgment will, therefore, be affirmed. ANDERS and SCOTT, JJ., concur. Dissenting Opinion - HOYT, J. [8 Wash. HOYT, J. (dissenting). I am unable to agree with the conclusions of the majority in the foregoing opinion. The instruction complained of by appellant, and set out in said opinion, while, perhaps, capable of the construction given it by the majority, was such as to equally warrant the construction contended for by the appellant. This being so, it is impossible to say how the jury understood it. Hence it was not such an instruction as the appellant was entitled to. It related to one of the most vital questions in the case, and he was entitled to have a positive, unambiguous instruction as to the law relating thereto. If he did not get it, he is entitled to a reversal of the judgment unless it affirmatively appears that he could not have been injured by the error of the court in that regard. It is conceded that the finding of the jury as to the value of the property, having been only three hundred dollars, was entirely unsupported by the proofs, and that for that reason such finding must be disregarded. The other reason suggested why such instruction could not have injured the appellant, was that the jury specially found that the respondent had no knowledge of the fraudulent intent of his father at the time he purchased the property. In my opinion this finding is not sufficient to show that the appellant was not injured by the instruction above referred to. It is in no manner made to appear therefrom that the jury in arriving at the general verdict might not have been influenced by their understanding of the instruction. It is a fact well known to all who have had anything to do with juries that they usually arrive at their general verdict first, and then answer the special interrogatories submitted to them, and in so doing so resolve every doubtful question of fact as to sustain the general verdict. There is another reason why I think appellant is entitled to a new trial. The practically undisputed proofs showed that at the time respondent purchased the property there Jan. 1894.] Opinion of the Court- ANDERS, J. was at most only an unsettled account between himself and his father, on which there was due not to exceed $200. It further appears that at the time of such purchase this indebtedness was not wiped out, but instead thereof a note for $300 was given in full payment for the property. For this reason it seems to me that many of the instructions given by the court were inapplicable to the evidence submitted to the jury, and had a tendency to mislead unless they had been supplemented by further instructions in the line of the requests made by appellant and refused by the court. I think that justice demands a reversal of the judg ment, and a new trial. STILES, J., concurs. [No. 977. Decided January 16, 1894.] HALEY GROCERY COMPANY, Appellant, v. JOHN HALEY, Respondent. SALE OF GOOD WILL CONSTRUCTION OF CONTRACT. Where a person agrees, for a consideration, not to engage, within a certain time and within certain defined limits, in the grocery business, either in his own name or in that of another, or conduct or engage in such business for any other firm, person or corporation, with any share of the profits, or with any interest in the property, and with no secret or actual accounting or division of either property or profits for his benefit, or for compensation regulated on the basis of profits, or sales of property or stock, it is not a violation of the contract for him to enter the employ of another grocery firm within said defined limits as a salesman upon a monthly salary. Appeal from Superior Court, King County. Bausman, Kelleher & Emory, for appellant. Opinion of the Court- ANDERS, J. [8 Wash. The opinion of the court was delivered by ANDERS, J.-The respondent was a stockholder and employé of the Haley Grocery Company, of Seattle. In October, 1892, he sold his stock to one Hill, and at or about the same time entered into the following contract with appellant: "For and in consideration of the sum of $1.00 to me in hand paid and other good and valuable consideration, the receipt whereof is hereby acknowledged, I undertake and agree with the Haley Grocery Company that within the period of three years from this date I will not engage in the business of wholesale or retail groceries, either in my own name or in that of another, or conduct or engage in any such business for any other firm, person or corporation, with any share of the profits, or with any interest in the property, and with no secret or actual accounting or division of either property or profits, for my benefit, or for compensation regulated on the basis of profits or sales of property or stock. This agreement is limited to the city of Seattle, Washington, and to that part of the city lying within a radius of half a mile from the present place of business of the Haley Grocery Company, in the Boston Block on Second street. Outside of said limits I retain all rights of engaging in or conducting the grocery or any other business, either for myself or for any firm, person or corporation, and upon any basis of interest or compensation whatever. (Permission is given for business on Pike street.)" Some two months thereafter the respondent entered into the service of the Seattle Grocery Company, within the limits mentioned in his contract with the appellant, as a salesman at a salary of one hundred dollars per month, which was his only compensation. The appellant brought this action to enjoin the respondent from remaining in the service of the Seattle Grocery Company, on the alleged ground that such employment was in violation of the contract above set forth. The court granted a temporary Jan. 1894.] Opinion of the Court - ANDERS, J. restraining order, but at the final hearing dissolved the order and dismissed the action. plaintiff appeals. From that judgment the It will be seen by an examination of the contract in question that the respondent's agreement was not to engage, within a certain time, and within certain described limits, in the grocery business, either in his own name or in that of another, or conduct or engage in such business for any other firm, person or corporation, with any share of the profits, or with any interest in the property, and with no secret or actual accounting or division of either property or profits for his benefit, or for compensation regulated on the basis of profits or sales of property or stock. The court below held that, by working for a salary, the respondent violated none of the provisions of his contract, and we are at a loss to see how any other conclusion could have been arrived at. The proof is overwhelming that the respondent received nothing but a bare monthly salary as compensation for his services, and the conditions and limitations of the contract itself are so clearly and plainly expressed therein, that, in our opinion, they are susceptible of but one construction. Judgment affirmed. cur. DUNBAR, C. J., and SCOTT, HOYT, and STILES, JJ., con |