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Turzynski v. Libert

JANUARY 21, 1970.

STANLEY TURZYNSKI, PLAINTIFF-APPELLANT,

v.

SAMUEL A. LIBERT, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIEN, Judge, presiding. Judgment affirmed.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.

Rehearing denied May 8, 1970.

Plaintiff, Dr. Stanley Turzynski, brought suit to enjoin and restrain defendant, Dr. Samuel A. Libert, from resuming the practice of medicine in violation of a restrictive covenant. Plaintiff appeals from the judgment of the Circuit Court of Cook County which dismissed plaintiff's complaint for want of equity and taxed costs including Master's fees against plaintiff.

On May 4, 1961, the parties entered into a written agreement whereby defendant agreed to sell to plaintiff certain real estate, personal property and medical equipment, accounts receivable and defendant's medical practice, located at 6165 Archer Avenue, Chicago, Illinois, and known as the Garfield Medical Center, for the sum of $185,000.

The agreement contained a provision, identified as "par 6," that defendant would not practice his profession as a general practitioner or open a new office for the general practice of medicine directly or indirectly after the closing date of the transaction within a radius of 15 miles from 6165 Archer Avenue, Chicago, excepting therefrom the downtown area of the City of Chicago, River Forest and Oak Park, Illinois.

The sale was consummated on August 19, 1961, and plaintiff entered upon the operation of the medical center. Pursuant to another provision of the agreement defendant was to be retained as an employee of plaintiff until December 1, 1961 for the purpose of effecting a "smooth transfer" of the medical practice.

Approximately two years after the consummation of the foregoing sale, plaintiff was advised that defendant was preparing to open an office and engage in the general practice of his profession next door to the premises of plaintiff, at 6167 Archer Avenue, Chicago, Illinois. Plaintiff thereupon initiated the instant litigation predicated upon the restrictive covenant.

Defendant filed as part of his affirmative defense to plaintiff's complaint for an injunction, a certain document, Exhibit No. 3, dated December 1, 1961, and allegedly executed by the parties. The document commenced with the caption, "Amendment to the Memorandum of Agreement of May 4, 1961 between Dr. Samuel A. Libert and Dr. Stanley Turzynski," and recited the following:

"(1) Whereas paragraph numbered 6 on page three (3) is ambiguous and its validity questioned because line five states a prohibitive 15 mile radius but does not give a time limitation and

"(2) Whereas Dr. Turzynski desires to capitalize financially on the good name and offices of Dr. S.A. Libert

"Dr. S. Turzynski and Dr. S.A. Libert do mutually agree to cancel and set aside the conditions of section 6 of said agreement provided Dr. S.A. Libert agrees to remain employed by Dr. S. Turzynski for an additional three (3) months beyond December 1, 1961 as per paragraph or section (sic) numbered 5.

"Dated and signed Dec. 1, 1961.

(S) Samuel A. Libert, M.D. (T) Samuel A. ...


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