In Thames v. Rotary Engineering Co., 315 S.W.2d 589 (Tex. Civ. App. 1958), two employees of a partnership signed noncompetition agreements that apparently did not contain assignment provisions. Subsequently, at various times, new articles of partnership were created after members of the partnership withdrew and after one member died. Finally, the partnership assets were sold to a corporation, the plaintiff, the shareholders of which were the partners of the partnership as it existed at the time of the sale. One of the two employee-defendants terminated his employment prior to the sale and the other after the sale. Both went to work for competitors. The plaintiff corporation sued both defendants for breach of their noncompetition agreements. After a bench trial, the court entered permanent injunctions enforcing the agreements. The employees appealed on the grounds that the agreements were not assigned or assignable, however the appellate court affirmed. “[W]e do not find any inhibition against the assignment or transfer of this type of covenant or agreement. These are not agreements to work, but are restrictive agreements promising not to compete.” Id. at 590. However, the court also held that the employees had consented to the assignment by their continuing to work for each succeeding partnership and the corporation. Id. at 591. In fact, only one of the two employees worked for the corporation. Accordingly, it is unclear if the second argument, i.e., consent, is central to the court’s holding. However, in T.E.Moor & Co. v. Hardcastle, 421 S.W.2d 126 (Tex.Civ.App. 1967), the court, relying on Thames, held that an assignee could enforce an employee’s restrictive covenant even where the employee did not work for the successor after it acquired the assets of the predecessor.
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