## Facts

- Fullerton Lumber Company operated retail lumber yards in Wisconsin and employed Albert C. Torborg as manager of its Clintonville yard.
- In 1946, Torborg signed an employment contract containing a post-employment covenant not to engage in the retail lumber or coal business within 15 miles of any yard where he worked for 10 years after employment ended.
- In 1953, Torborg resigned and opened a competing retail lumber yard in Clintonville within the restricted area.
- After Torborg opened the competing business, several Fullerton employees left to work for him, and Fullerton claimed substantial business loss.
- The parties disputed whether Torborg’s employment had “terminated” in 1947 (which could have started the 10-year period then) or whether his absence was treated as a leave with continuous employment until his 1953 resignation.

## Issues

1. Whether the covenant restraining Torborg from competing within 15 miles for 10 years was reasonable and enforceable.
2. If the 10-year duration was unreasonable, whether the covenant could be enforced for a shorter, reasonable time (partial enforcement/divisibility).
3. Whether Torborg’s employment terminated in 1947 or continued until his 1953 resignation for purposes of triggering the covenant.

## Decision

- The Wisconsin Supreme Court reversed the dismissal and remanded.
- The court held that employment restrictive covenants are enforceable when reasonably necessary to protect the employer and reasonable in scope and duration.
- The court agreed the 10-year duration was unreasonably long, but held the covenant could be enforced for a shorter reasonable period because it was divisible.
- The court rejected the trial court’s finding that employment terminated in 1947 as contrary to the great weight and clear preponderance of the evidence, treating 1953 as the relevant termination.
- The court directed entry of judgment granting injunctive relief enforcing the covenant only for a reasonable limited time within the covered area.

## Legal Principles

- Post-employment restraints are enforceable only if reasonably necessary to protect the employer’s legitimate interests and reasonable as to time and geographic reach, while not being oppressive to the employee or injurious to the public.
- A restraint that is unreasonable in its entirety is unenforceable, but a restraint that is divisible may be enforced to the extent it is reasonable.
- Appellate review may set aside a factual finding when it is against the great weight and clear preponderance of the evidence.

## Conclusion

The court held that the covenant’s 10-year term was overlong but not fatal because the restriction was divisible; it ordered limited injunctive enforcement for a reasonable period measured from Torborg’s actual 1953 resignation, not an asserted 1947 termination.


Fullerton Lumber Co. v. Torborg, 70 N.W.2d 585 (Wis. 1955)