Fullerton Lumber Co. v. Torborg

270 Wis. 133, 70 N.W.2d 585 (1955)



Contracts are subject to the test of whether their purpose is contrary to public policy, and if there is any credible evidence to sustain a finding that they are deliberately unreasonable and oppressive, such covenants must be held invalid whether severable or not.


Defendant, plaintiff's key employee in its lumberyard, had a restrictive covenant in his employment agreement. After leaving plaintiff's employment, defendant immediately commenced a competitive business, and plaintiff's business declined by two-thirds. Plaintiff filed suit to enforce the covenant. The trial court found the 10-year period of restraint imposed by the contract was unreasonably long, and it refused to enforce any aspect of the restrictive covenant. On appeal, the court reconsidered the rule that a covenant imposing an unreasonable restraint was unenforceable in its entirety, and it expanded the rule of partial enforcement of indivisible promises. The court reversed and remanded for a determination by the trial court of the extent of time needed to enforce the restrictive covenant to provide reasonable and necessary protection for plaintiff.


Was there evidence to support the trial court's finding that there was a termination of the employment on June 7, 1947, and a rehiring thereafter under terms different from the employment agreement of April 15, 1946?




Under the opinion of the court, it was stated that based only on the negative and vague testimony of the defendant, it is against the great weight and clear preponderance of the evidence. At no time from 1947 until defendant quit did he indicate that he did not consider himself employed under the contract and during all that time he knew he was subject to the benefits of the pension plan. His acquiescence therein is contrary to the finding that the employment terminated in 1947.

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