On appeal from the former Court of Chancery.
For affirmance: Chief Justice Vanderbilt and Justices Case, Heher, Wachenfeld, Burling, and Ackerson. For reversal: None. The opinion of the court was delivered by Wachenfeld, J.
[1 NJ Page 253] An interlocutory injunction was decreed below restraining the appellant, Max Rubin, from operating a fruit and vegetable business at 65 East Cherry Street, Rahway, which he together with three other persons purchased by acquiring all the stock of the owning corporation. After the order appealed from was made, the Vice Chancellor partially
stayed the injunction by permitting him to continue in the dairy department of the business provided an appeal was diligently prosecuted.
The appellant with a partner, Irving Miller, for five years operated a fruit and vegetable store at 47 East Cherry Street, Rahway, and having decided to dissolve the partnership and terminate the business, closed the store in the early part of May 1942 and disposed of many of its physical assets. In the latter part of the same month, after the store had been closed for approximately three weeks, they sold certain store equipment consisting of scales, cash register, vegetable bins and a truck for the sum of $2,100 to the respondents. The transaction was evidenced by a bill of sale prepared by an attorney who represented all the parties in interest. It was signed in the name of "Rahway Public Market" and underneath, the signatures of both Irving Miller and Max Rubin were added. In a schedule annexed to the bill of sale the following provision was included:
"It is further understood and agreed that this bill of sale shall include the good will of the Rahway Public Market, together with the right, title and interest of the parties of the first part in and to a lease * * *"
"It is hereby understood and agreed by and between the parties hereto that the said parties of the first part, Max Rubin and Irving Miller, will not engage in the fruit and vegetable business within the city limits of the City of Rahway, County of Union and State of New Jersey."
The respondents reopened the store at the same location and continued to operate it for approximately two years and then moved the business across the street to No. 44, where they have since carried on. Six years after the sale, appellant and three others purchased a going fruit and vegetable business located on the same street and almost opposite the respondents' place of business.
No steps have been taken to reform the contract, as suggested by the court below, on the theory that the covenant was not disclosed to the sellers, and instead this appeal is pursued.
It is alleged the sale of good will and the covenant not to compete were not included in the schedule with the knowledge of the appellant; that the covenant cannot be enforced against the appellant individually since it was a joint and not a several obligation; that it is a nullity, not being incidental to the sale of good will of a business; and that the covenant, being unreasonable in time and space, is invalid.
The bill of sale and the schedule must be read together to ascertain the transaction between the parties and a clause in the schedule should be given the same effect as if it had been in the body of the instrument. Collerd v. Tully, 77 N.J. Eq. 439 (Ch. 1910), aff'd 78 N.J. Eq. 557 (E. & A. 1911). The execution of the bill of sale and affidavit are admitted and the appellant cannot defeat this injunction merely on the allegation that certain clauses in the instrument were not brought to his attention. Interlocutory relief based on a written contract will not be refused on the basis of mistake in the drawing of the instrument unless there is a showing reformation would probably be granted at the final hearing. To support reformation a high order of proof is required. Ehnes v. ...