The opinion
Dissenting Opinion.
Young, C. J.
I cannot agree with the majority. They construe the so-called negative covenant to be applicable only during the initial two year period of the contract and to protect appellants against unfair competition only if the appellee breaches his contract and goes into business during said two year period.
The covenant is not ambiguous and I cannot limit it that way. If that conclusion is to be reached, words not there must be read into the contract. It must be changed to read as follows:
“As a part of the consideration of his employment the said second party agrees that in case he should leave the services of said first parties,
during the two year period herein stipulated,
he will not, for a period of five years thereafter, engage directly or indirectly on his own account or in connection with others in the business of soliciting or writing insurance of any kind in Wayne County, Indiana.”
The italicized words must be inserted. With them in, the force of the covenant is limited to the first two years. With them out there is no limitation. We have a contract which, in specific words, contemplates that there may be services by appellee to appellant after the initial two year term has expired, and we have the negative covenant in that contract effective when appellee leaves the services of appellants without limitation upon the time of such leaving. It may be during, at the end of, or after the initial two year term. That being
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true, the acts complained of violated the negative covenant and should have been enjoined.
Of course we may not isolate the negative covenant. We must read it as a part of the entire contract. Not only is the negative covenant standing alone clear and unambiguous, but to me it is consistent with the language of the entire contract, including appellee’s promise “that during his association, (with appellants) or thereafter, he shall not disclose to others any fact concerning the business of” appellant. It seems obvious that both parties appreciated the value of customer lists and data concerning expiration dates, insurance requirements and other similar information which became open to appellee as the result of his employment. Likewise, it seems apparent from the language of the contract as a whole, read in the light of all surrounding circumstances, that the negative covenant was deliberately inserted without limitation and with unmistakable intent to protect appellants at any time appellee might leave their service from the injurious consequences of competition on the part of appellee made possible by his use of confidential information and knowledge acquired by appellee in the course of his employment under the contract sued on.
Note.—Reported in 65 N. E. (2d) 121.