23 S.D. 610 | S.D. | 1909
This cause is before this court upon an appeal from the judgment in the trial court, and from an order of said court denying a new trial herein.
The action is on-e brought to recover the -sum of $500 as liquidated damages for a breach of a written contract. It is alleged in the complaint that plaintiff purchased of the defendant a- stock of drugs located at Bradley, S. D.; that the said purchase included the good will of the business of defendant both as a pharmacist and druggist and as a physician at said town of Bradley. Pl-aintiff alleges the payment of a consideration for the above, and that at the same time and as part of said transaction defendant entered into a contract in words and figures, as follows, to wit: “Bradley,
There are numerous assignments of error, but in the view we take of this case, holding, as we do, that the lower conrt must.be reversed and a new trial ordered, it is unnecessary to consider but a few of such assignments. However, as some of the same questions may arise upon a new trial as are raised on this appeal, we deem it best to determine the correctness of certain rulings com-
Appellant contends that there was not sufficient evidence to justify the court in submitting to the jury the question as to whether 'or not the defendant had broken the agreement sued upon, the breach complained of being that defendant had practiced medicine, and plaintiff furher contends that, even if under the evidence received herein such question of fact should have been submitted to the jury, yet that the court erred in striking out from defendant’s answer certain parts thereof, hereinbefore mentioned, and in excluding certain evidence offered in line with such parts of the answer, and, further, that the court erred in not giving to the jury a certain instruction requested by the defendant.
This brings us to the real merits of this case, and to the questions upon the determination of which we find it necessary to order
Giving the testimony in this case its strongest interpretation in favor of the plaintiff, it would appear that defendant visited some two or three patients during the time covered by the agreement, and treated such patients, making a few calls to each one, and it would appear also, that at the request of certain parties he wrote some eight prescriptions, the majority of which were written at Bradley, but nothing to show that they were all written there. Plaintiff offered and there was received in evidence, over defendant’s objection, certain letters. The purpose of their offer is hard to determine, but, 'if material for any purpose when so offered, it was to show a state of mind on the part of defendant indicating a
In the case of Greenfield v. Gilman, 140 N. Y. 168, 35 N. E. 435, the plaintiff sought to recover upon an agreement entered into by the defendant agreeing not to practice medicine, and the court, in the interpretation of the agreement in that case so interpreted that in its effect it was the same as the agreement in the case at bar so far as it pertains to the practice of medicine, says: “While the law to a certain extent tolerates contracts in restraint of trade or business when made between vendor and purchaser, and will uphold them ,they are not treated with special indulgence. They are intended to secure to the purchaser of the good will of a trade or business a guaranty against the competition of the former proprietor. When this object is accomplished, it will not be presumed that more was intended.” In the New York case it appeared that the defendant was both a doctor and pharmacist, that he had attended one patient, and for patients calling at the drug store he had prescribed for them and compounded prescriptions. The court held that this was no breach of the contract he had entered into. It is true that in discussing the same they referred to the fact that it was in the line of the custom of pharmacists in many cases to put up prescriptions of their own and the plaintiff in the case at bar in discussing the New York case in his brief contends that such prescribing was in no sense “’practicing medicine.” We fail to be able to distinguish the difference between a doctor prescribing medicine at the patient’s home and prescribing the same when behind the pharmacist’s table, and, if it is not prescribing medicine for ¡a pharmacist to make out a prescription and fill the same, then certainly the plaintiff in the case at bar has no reason for complaint on account of the defendant’s having written prescriptions, which appear to have been written without any charge, and where the only profit derived therefrom was derived by the plaintiff in fill-in^ such prescription at his drug store. In the case of Nelson et al. v. Johnson, 38 Minn. 255, 36 N. W. 868, wherein there was an agreement not to engage in a certain business either directly or indirectly for five years, the said business being that of a lumber dealer, the Minnesota court uses these words": “The words ‘di
If, however, the trial court was right in submitting the question of breach of contract tO the jury, and the jury was justified under the evidence as it stood and the instructions of the court to find in favor of the plaintiff, yet we are fully satisfied that the court committed reversible error in not giving -the following instruction requested by appellant, to wit: “If you find from the evidence in the case that the defendant obtained the permission of plaintiff to make certain calls or professional visits upon patients in Bradley, then plaintiff cannot recover on said contract for making such professional calls.” We think it will not be questioned but what this requested instruction states a correct legal proposition. Therefore the only question is whether the evidence entitled defendant to this instruction. As hereinbefore noted, there was no evidence of professional calls except upon two or three patients, and, as to one of these patients, there was some question as to whether the call was professional, and the patient for whom defendant seemed to have rendered the greater and perhaps the only very material services was one Mrs. Lewis, upon whom defendant had waited at the time of her confinement, and had visited several times in connection therewith. It is impossible for us to determine how much weight the jury gave to the evidence relating to the attendance upon this patient in arriving at its conclusion that defendant had broken his agreement, and it is quite possible that with this out of the case' their verdict would have been different.
For the reasons above stated, the judgment of the trial court and order denying a new trial are reversed.