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Stevens v. the Protectoseal Co.

APRIL 8, 1975.

ARTHUR M. STEVENS, SR., PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,

v.

THE PROTECTOSEAL COMPANY, DEFENDANT, COUNTERPLAINTIFF, AND THIRD-PARTY PLAINTIFF-APPELLANT. — (ARTHUR M. STEVENS, JR., THIRD-PARTY DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. NATHAN M. COHEN, Judge, presiding.

MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

This appeal is taken from a decree of the circuit court granting plaintiff-appellee Arthur M. Stevens, Sr.'s request for specific performance of two agreements entered into with defendant-appellant Protectoseal Company (hereinafter defendant), and from judgments entered as part of the decree in favor of counterdefendant Arthur M. Stevens, Sr., and third-party defendant Arthur M. Stevens, Jr., on Protectoseal Company's counterclaim and third-party complaint.

Defendant prosecutes this appeal from that decree as well as from the trial court's adverse rulings on its motion to strike plaintiff's complaint and its motion for summary judgment. The following is a summary of the issues presented for review:

(1) whether the trial court erred in ruling that the allegations in the pleadings provided a basis for equitable jurisdiction to decree specific performance of two deferred compensation agreements;

(2) whether the evidence supported the trial court's decree; and

(3) whether the trial court erred in denying defendant's motion for a continuance.

The following facts and summary of the pleadings provide the setting for the actions giving rise to this appeal.

Employed by defendant since 1942, plaintiff became its controller in 1945, a vice president in 1948, and was elected its president in 1953. On July 1, 1961, plaintiff and defendant entered into a deferred compensation agreement wherein plaintiff agreed to devote his entire time and attention to the business of defendant, and defendant in turn agreed to pay the plaintiff $20,000 per year. The agreement further provided that upon plaintiff's voluntary or forced retirement, defendant shall pay him $869 per month for 7 years certain and thereafter for the duration of his life:

"[P]rovided he shall execute and deliver to the COMPANY a lifetime consultant, non-competing and non-disclosure agreement, and provided further that during the term of this Agreement he has not accepted directly or indirectly employment from or work for, nor has been interested in the business of any person, firm, association, or corporation other than the COMPANY."

On June 2, 1970, plaintiff and defendant entered into a second agreement as a compromise in settlement of litigation between them involving the alleged wrongful removal of plaintiff as president, chief executive officer, and chairman of the board of defendant. This agreement provided that plaintiff dismiss his appeal in a matter pending at that time; that pursuant to the agreement of July 1, 1961, he serve defendant as a lifetime consultant for which defendant would pay to plaintiff in addition to the deferred compensation called for in the earlier agreement, the sum of $9,572 for 2 years and $4,572 per year thereafter for the duration of plaintiff's life; and finally, plaintiff agreed that:

"[D]uring his lifetime he shall not accept directly or indirectly, employment from or render service or assistance to, or be interested in the business of any competitor or potential competitor * * *."

In September, 1971, plaintiff sold his stock holdings in the defendant company to Charles Barancik, president and chairman of the board of Justrite Manufacturing Company, an active competitor of defendant. In conjunction with the stock sale, plaintiff gave to Barancik copies of various annual reports of defendant's financial condition as well as defendant's shareholders list dated May 4, 1970. At the first shareholders meeting following the stock sale, Barancik was elected to defendant's board of directors, and consequently, additional information relating to defendant's activities came into his possession.

Plaintiff continued to receive payment under his agreements with the defendant until December 1, 1971, and thereafter, on February 24, 1972, filed his complaint in equity for specific performance alleging the existence of the two agreements; that, since his retirement from the presidency of defendant, he had at all times maintained himself in a consulting capacity having offered his services to defendant on numerous occasions; that he had otherwise complied with all the conditions of the agreements; that he had retired and was in need of funds for payment of his living expenses; that defendant had failed and refused to make payments to him; and that he had no adequate remedy at law since it would create a multiplicity of actions harmful and wasteful to the parties were he to bring suit for each payment defendant had failed to make and will fail to make in the future.

In its answer to the complaint, defendant admitted the execution of the two agreements and denied plaintiff's allegations of performance. Defendant went on to deny any obigation to plaintiff under either of the agreements, alleging the nonhappening of the express conditions in the July 1, 1961, agreement thereby excusing its performance thereunder, and alleging that plaintiff committed material breaches of his promise (undertaken in the June 2, 1970, agreement) not to "render service or assistance to, or be interested in the business of any competitor" of defendant in that he "willfully and knowingly rendered service and assistance to Justrite Manufacturing Company, of Chicago, Illinois, a direct competitor of defendant." Defendant further stated that if plaintiff had any remedy, ...


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