179 Ky. 91 | Ky. Ct. App. | 1918
Opinion of the Court by
Affirming.
On December 1, 1915, Boone leased a certain poultry warehouse and fixtures to Burnbam & Dallas for a term of five years, at a rental of one hundred and twenty-five ($125.00) dollars per month, payable at the end of each month. This lease was in writing signed by the parties. On December 10th, following, the same parties entered into another writing, whereby, it was agreed that Boone should not engage in the poultry business within fifteen miles- of Fulton during the term of the lease executed to Burnham & Dallas. Boone operated a large poultry house at Paducah, Kentucky, and had been engaged in the same business at Fulton and other towns in that vicinity before executing the lease. From this second contract and the evidence it is learned that Burnham & Dallas leased the warehouse of Boone in order to induce him to quit the business in that vicinity for five years.
Burnham & Dallas occupied the warehouse only four months, and during that time paid no rents whatever to Boone, although the lease contract required them to pay each month, and provided that in case payment of rent
Although the plaintiff complains of the instructions given by the court, we are constrained to the belief that they fairly submitted the questions of fact to the jury, especially so considering the confused state of the plead-' 'ings.
Appellant insists that the contract which he made with Burnham & Dallas whereby it is provided that “T. C. Boone hereby agrees not to engage in poultry business, which includes fowls of all kind, geese and butter, during the life of said lease, and it is distinctly stipulated and agreed that he shall not engage in said business, directly or indirectly, as agent or otherwise for another, within a radius of fifteen miles of Pulton, Kentucky, and if the said T. C. Boone should in violation of this agreement, engage in the poultry business in any manner or way whatever, within a radius of fifteen miles of Pulton, Kentucky, then he agrees that a stipulated damage of one hundred dollars may be fixed as due Burnham & Dallas for each and every car, or for each and every shipment he might make of poultry produce,” is void, because it contravenes public policy.
Anciently it was. the rule that any contract in restraint of trade was void, but this rule has been modified and relaxed to such an extent that contracts in reasonable'restraint of trade are now generally recognized as valid.
Sutton v. Head, 86 Ky. 156; Stovall v. McCrutchen, 107 Ky. 577; Pike v. Thomas, 4th Bibb 486; Skaggs v. Simpson, 110 S. W. 251; Breeding v. Tandy, 148 Ky. 345. In Borrone v. Mosley Bros, 144 Ky. 698, it is said that any restraint of trade will be upheld when it is an incident to and in support of another contract, or sale, in which the covenantor has an interest which is in need of protection.
Appellant here insists that the territory embraced within the fifteen mile radius around Fulton is greater than was necessary to protect appellees in their business, and, therefore, an unreasonable restraint, violative of public policy. It is true that a restraint must not be more extensive than is reasonably required.to protect the interest of the party in whose favor it is given and it must not be so extensive as to interfere with the interest of the public, for if it does so interfere it will be void to that extent. While there is a controversy in this case as to whether the contract was for ten miles or for fifteen miles, we feel that in either event the territory was not so extensive as to render the contract invalid as being against public policy. Where the contract of restraint appears to have been for a just and honest purpose, for the protection of the legitimate interest of the party, in whose favor it is imposed, reasonable as between the parties, and not specially injurious to the public, the restraint will be held valid.
A contract whereby one agrees not to engage in a given trade, occupation or calling without limit of time or place is not enforceable, because it is said that such a contract will not only deprive the individual of the right to pursue such trade, business or calling, but it would deprive the public of the skill and ability of the individual in his line of business. Many contracts, however, which restrained the individual from engaging in a certain business or calling within a radius of fifty or one hundred miles, have been held valid, and a trader, such as Boone,
Evidence is not wanting to sustain the verdict, and it was within the province of the jury to' determine all questions of fact properly submitted to them by the instructions.
We are not inclinéd, under the facts in this case, to attach much importance to the alleged improper argument of counsel for defendant before the jury, for we do not consider the remarks which are attributed to counsel as prejudicial under the circumstances.
Perceiving no error to the prejudice of appellant, judgment is affirmed.
