Bowling v. National Convoy & Trucking Co.

Bowling v. National Convoy & Trucking Co.

Opinion

 [*636]   [**543]  DAVIS, J. -- Assignments and cross assignments of error present two points on this appeal: (1) whether the contract sued on is a simple contract of employment, or a contract for the creation of an agency coupled with an interest, and (2) whether a court of equity in a proper case has power to grant interlocutory relief mandatory in form. The appeal is from an interlocutory order holding that the written agreement in controversy did create an agency coupled with an interest, but finding that as interlocutory relief could only be afforded by a temporary injunction in from partly prohibitory and partly mandatory, that such interlocutory relief should be entirely denied because of a supposed want of authority [***2]  in a court of equity to grant such relief as that sought, on the interlocutory proceeding.

As to the first point, it is sufficient to point out that the contract described in the bill of complaint was one by which Bowling, appellant here and complainant below, entered into an agreement with appellee National Convoy & Trucking Company, by which it was recited that the appellant had conceived and devised the plan of operating the business which was to be engaged in by the appellee, a corporation, with the appellant as manager; that as such manager, appellant was to be subject to the  [*637]  Board of Directors of the corporation and was to supervise and manage the business of transporting automobiles, which business it is further recited by the contract, was wholly attributable to the invention of the manager who was solely responsible for the company's being able to enjoy such business; that the manager should receive for his services certain stipulated compensation, including a percentage of the net income; that he should continue in his position from the date of the contract to date of discontinuance of business by the company, which discontinuance was stipulated against except [***3]  with the consent of the appellant or unless the company was operating at a financial loss; that in the event of the manager's death certain stipulated parts of the manager's compensation should be paid to the manager's personal representatives during the life of the contract.

The court below properly held that such an agreement constituted more than a mere contract of employment. It was the creation of an agency coupled with an interest in appellee's business, and as such, the agreement, under proper circumstances, is without doubt capable of specific performance in a court of equity as prayed for in the bill of complaint.

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