281 Mass. 355 | Mass. | 1933
The defendant, a-man of full age, married and a father, contends that he is not bound by his agreement under seal not to “conduct, solicit pupils for, or in any capacity enter the employment of or act in any capacity for any private or semi-private school other than the . . . [plaintiff] providing instruction in Business, Shorthand, Typewriting, Accounting, Secretarial or Commercial, subjects, or any of said subjects, and located in the County of Worcester in the Commonwealth of Massachusetts or in Providence County in the State of Rhode Island during the duration of this contract [for his employment] or for a period of five years thereafter, whether said contract shall terminate by reason of the expiration of its term or
The evidence was heard by a master who found, inter alla, the facts above recited. The defendant excepted to the report on the grounds that the finding that the plaintiff was not guilty of loches was inconsistent with the other findings reported and was not supported by the facts found; and that a finding that the plaintiff “has built up and acquired a substantial good will and favorable reputation in the territory served by it” was too vague and indefinite. These exceptions were overruled after hearing. A motion to recommit was denied. An interlocutory decree
There is nothing in the contention of the defendant with regard to loches, even if it be open to him after he has failed to appeal from the interlocutory decree which overruled the exceptions based upon it. The contract provided that any consent to his solicitation of pupils for other schools must be given in writing by the directors of the plaintiff. He relies upon knowledge of such activity on his part by a vice-president of the plaintiff who did not know that the defendant had bound himself to this term of the contract; and failure of the plaintiff to take legal action until more than six months after such knowledge by the vice-president. No other official connected with the plaintiff knew actually of the breach by the defendant until April, 1932. The bill was filed April 25, 1932. Such facts fall far short of proof of loches in bringing suit. They do not even prove knowledge by the corporation before April, 1932, that a breach had occurred.
Our law does not hold all contracts in restraint of trade or of competition to be invalid. See Gamewell Fire Alarm Telegraph Co. v. Crane, 160 Mass. 50. In a long line of recent decisions contracts closely analogous to that here in question have been held to be valid and have been enforced. Sherman v. Pfefferkorn, 241 Mass. 468. Chandler, Gardner & Williams, Inc. v. Reynolds, 250 Mass. 309. Farrell v. Chandler, Gardner & Williams, Inc. 252 Mass. 341. Boston & Suburban Laundry Co. v. O’Reilly, 253 Mass. 94. Edgecomb v. Edmonston, 257 Mass. 12. Walker Coal & Ice Co. v. Westerman, 263 Mass. 235. Brannen v. Bouley, 272 Mass. 67. Walker Coal & Ice Co. v. Love, 273 Mass. 564. They establish as our law that a covenant restraining trade or competition, inserted in a contract for personal service, is not in itself invalid if the interest to be protected is consonant with public policy and if the restraint is limited reasonably in time and space. What is reasonable depends upon the facts. Nothing to the contrary is asserted in Club Aluminum Co. v. Young, 263 Mass. 223, Padover v. Axelson, 268 Mass. 148, May v. Angoff, 272 Mass. 317, West v.
In Club Aluminum, Co. v. Young, 263 Mass. 223, the restriction, though only for a year, extended wheresoever the plaintiff did business. The allegations of the bill showed that the business covered a wide extent of territory. The restriction was not reasonable. Whiting Milk Co. v. O’Connell, 277 Mass. 570. The rule of law followed was the rule stated here.
The master’s report showed that since his graduation from the Massachusetts Institute of Technology at Boston, the defendant had been employed as a “sales engineer” for a heating and ventilating company; had had charge of “market analysis” for a rubber company; had been employed making contracts of sales for an oil company; had opened and conducted for two years a business school for himself at Waltham (which is in the county of Middlesex); and for three months prior to his employment by the plaintiff had solicited pupils for the Post business school at Worcester which the plaintiff then took over. So far as appeared he had no especial connection with Worcester. On the other hand, the plaintiff was incorporated in 1907 and at that time took over and continued “Becker’s Business School,” so that the school has had a continuous active existence in Worcester for over forty-five years. It has acquired a substantial good will in the territory served by it. It expends about $10,000 a year in securing new students, by personal solicitation by employees, by newspaper advertising, by solicitation by mail, and through recommendations by past and present students. It is damaged by solicitations of pupils in behalf of other schools, although it is difficult to prove the equivalent in money of the injury suffered.
We find here no public policy forbidding an employer to refuse employment to one whom he fears may, in the future, be a source of injury to him in his business, unless such injury be guarded against by a contract; nor limiting the duty of a court of equity to enforce such contract when it has been intelligently executed without compulsion and is limited reasonably in space and time. The defendant has not been
Decree affirmed with costs.