Orkin Exterminating Co. of Raleigh, Inc. v. Griffin , 258 N.C. 179 ( 1962 )

128 S.E.2d 139 (1962) 258 N.C. 179

ORKIN EXTERMINATING COMPANY OF RALEIGH, Incorporated
v.
Allen J. GRIFFIN, and Allen J. Griffin and Burris B. Jones T/A Wayne Exterminating Company.
ORKIN EXTERMINATING COMPANY OF RALEIGH, Incorporated
v.
Burris B. JONES and Burris B. Jones and Allen J. Griffin T/A Wayne Exterminating Company.

Nos. 470, 471.

Supreme Court of North Carolina.

November 21, 1962.

Wallace & Wallace, Harvey W. Marcus, Kinston, and Irving K. Kaler, for plaintiff, appellee.

Herbert B. Hulse, Goldsboro, for defendant, appellants.

PER CURIAM.

Each defendant makes only one assignment of error. It raises the question whether the court below erred in continuing the temporary restraining order until the final determination of the action on its merits.

The judge was not requested to find the facts upon which he continued the temporary restraining order and he made none. However, it is presumed for the purpose of his order that he found facts sufficient to support it. Hall v. Queen City Coach Co. et al., 224 N.C. 781, 32 S.E.2d 325; Edmonds v. Hall, 236 N.C. 153, 72 S.E.2d 221; Strong, N. C. Digest, Injunctions, Sec. 13.

The affidavits disclose that defendants in the course of their employment had acquired knowledge which would give them an unfair advantage over plaintiff in a competitive business. Under such circumstances equity will enforce a covenant not to compete if it is: "(1) in writing, (2) entered into at the time and as a part of the contract of employment, (3) based on valuable considerations, (4) reasonable both as to time and territory embraced in the restrictions, (5) fair to the parties, and (6) not against public policy." Asheville Associates, Inc. v. Miller and Asheville Associates, Inc. v. Berman, 255 N.C. 400, 121 S.E.2d 593; Orkin Exterminating Co. v. Wilson, 227 N.C. 96, 40 S.E.2d 696; G.S. § 75-4.

The plaintiff in this case made out a prima facie showing of right to the final injunctive relief it demanded. When this is done the court will ordinarily continue a temporary restraining order if, in its opinion, it is reasonably necessary to protect the plaintiff's rights until the controversy can be finally determined. On this record, we think the plaintiff was entitled to have the temporary restraining order continued as ordered by Judge Paul. Delmar Studios of the Carolinas, Inc. v. Goldston, 249 N.C. 117, 105 S.E.2d 277.

The judgment of the court below is affirmed.

Affirmed.