Appeal from the Circuit Court of Winnebago county; the Hon.
BERNARD M. DECKER, Judge, presiding. Decree affirmed.
PRESIDING JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 26, 1956.
The parties hereto entered into the following written contract, viz.:
"Agreement made this 3rd day of August, 1954, between Lawrence F. O'Brien, vendor, and John W. Hicklin, purchaser.
"1. Whereas, vendor has for several years exercised his profession of a lawyer at 119 North Church Street, Rockford, Illinois, and is now desirous of disposing of said practice and the purchaser is desirous of establishing himself as a successor to said practice, having been associated as a lawyer in business with vendor for several years. Now, therefore, the said vendor agrees to sell, and purchaser agrees to purchase the said practice and the good will and benefits thereof together with all the fixtures, furniture, equipment, library, accounts, files and all assets of said law business, in accordance with inventory attached hereto, and located in suite 406-407 North State Building, Rockford, Illinois, under the following terms:
"2. Purchaser shall take possession on September 1, 1954, and shall pay to seller 32 1/2% of the net income from said business for a period of seven consecutive years from said date, payable three times each year, beginning Jan. 1, 1955, and continuing May 1, 1955, and September 1, 1955, and on the same date of each month during the succeeding years until the seven years have expired.
"In addition purchaser shall pay to seller the sum of $2500.00 for the fixtures and equipment as set forth in inventory attached hereto at the rate of $500.00 per year payable on the first day of each year beginning Sept. 1, 1955, and continuing for four successive years thereafter, without any interest charge.
"Seller will execute the required bill of sale to transfer all items covered by this agreement upon payment in full under the terms as stated herein.
"3. Said vendor agrees not to practice law or act directly or indirectly as a partner or assistant to or with any other lawyer (with exception of purchaser) in Winnebago County.
"4. The firm name of O'Brien and Hicklin shall be maintained during the term of this agreement, however purchaser has the right to include and add the name or names of additional members of the firm and has the right to use said name even after this contract has been paid in full.
"5. It is mutually agreed that if any of the said installments of the purchase price be not paid when due, or if purchaser shall abandon this contract said contract may be rescinded by vendor, and all payments shall be forfeited to said vendor, who shall afterwards be at full liberty to resell said business and assets as inventoried herein. In such event the purchaser obligates himself to seller not to establish a law practice or act directly or indirectly as partner or assistant to or with any other lawyer in Winnebago County for a period of five years after such forfeiture or abandonment."
On September 1, 1955, John W. Hicklin, the purchaser, filed the instant verified complaint, consisting of two counts, in the Circuit Court of Winnebago County. After alleging the execution of the foregoing contract, Count One of the complaint alleged that both parties were lawyers, admitted to practice in Illinois and that O'Brien, prior to August 3, 1954, had employed Hicklin in his law office for several years; that plaintiff took possession of defendant's law office on September 1, 1954, and defendant left Rockford and took up his residence in the state of California; that plaintiff maintained said office under the name of O'Brien and Hicklin, under the terms of the agreement, and on January 1, 1955, prepared a statement of the business done from September 1, 1954, to January 1, 1955, and sent the same to defendant with his check for the amount shown by the statement to be due O'Brien, which statement and check O'Brien received and retained. This count of the complaint then alleged that on or about April 1, 1955, the defendant, without notice to plaintiff, returned to Rockford and, without any acquiescence on the part of the plaintiff, moved into plaintiff's office, took possession thereof and of all the physical equipment and of all books, records, accounts and moneys and, over the protests of plaintiff, has continued to keep possession thereof; that although the plaintiff is willing to account to the defendant under the contract, he has been unable to do so because defendant is in possession and control of all the records and books of the plaintiff and since the return of defendant to Rockford on April 1, 1955, defendant has engaged actively in the practice of law, contrary to the provisions of said contract. This count then charges that unless defendant is restrained from doing so and unless defendant is ordered to turn over to the plaintiff all the books, records, accounts and moneys of the law business known as O'Brien and Hicklin, plaintiff will be irreparably damaged. The prayer of this count is that the defendant be ordered to turn over to plaintiff all records, books and accounts and money of the law practice and business known as O'Brien and Hicklin; that defendant be ordered to account to plaintiff for the money received by him from the maintenance of the law practice after April 1, 1955, and that defendant be enjoined from engaging in the practice of law in Winnebago County, Illinois. The second count of the complaint was substantially the same as the first, but sought to recover a money judgment against the defendant in the sum of $50,000.
The defendant answered and filed a counterclaim, neither of which are abstracted. By his answer, the defendant, among other things, admitted the execution of the contract which forms the basis of this action, admitted that he left Rockford on or about September 1, 1954, and admitted that plaintiff took possession of the office, rendered an account about January 1, 1955, and sent defendant a check as alleged. The answer then stated that the defendant returned to Rockford on or about April 1, 1955, and to the law office of O'Brien and Hicklin, but averred that he did so upon due notice to plaintiff and with his consent and acquiescence. The ...