| Me. | Jan 22, 1896
This equity cause was heard by a single justice upon bill, answer and evidence, a replication being waived. After a final decree for the plaintiff had been signed, entered and filed, the defendant instead of appealing generally, excepted to a single clause in the decree. This exception was allowed and is now presented to the law court.
I. The plaintiff’s counsel insists at the outset that exceptions cannot be allowed to a final decree ; that the only mode of obtaining a review by the law court of any part of the final decree is by appeal. The equity procedure act, however, seems to contemplate exceptions to a final decree, whatever may be the general rule. (R. S., c. 77.) Thus it is declai-ed in section nineteen, that all decisions of a single justice are "subject to appeal and exceptions;” — in section twenty, that "all cases in which appeals or exceptions are taken from a final decree, shall remain on the docket,” &c. ; — in section twenty-five, that " such exceptions shall be taken, entered in the law court, and there heard and decided like appeals.” Of course, exceptions to any part of a final decree can only present a question of law. No questions of fact are open for consideration upon exceptions. (§ 25.)
II. In this case, the final decree permanently enjoined the defendant from "going into or carrying on the business of photography at Bar Harbor, either in his own name, or in the name of his minor son, or other person or as clerk or agent of his said son or other person,” &c. The defendant excepted only to the clause, "as clerk or agent of his said son or other person.” The question of law presented by the exception is evidently this : whether the plaintiff’s bill contains allegations sufficient to support that clause of the final decree excepted to. It is an elementary principle that no final decree can be extended beyond the allegations in the bill. Decrees in equity must be secundum allegata, as well as secundum probata.
Referring to the bill in this case, (which is sent up with the exception) w'e find in it, inter alia, an allegation that the defendant sold his photograph business at Bar Harbor, including "the good will of the said business,” to the plaintiff; and also, as a part of the consideration of the sale, agreed that he would "never go into or carry on said business of photography in future in said Bar Harbor.” It is further alleged in the bill that, since said sale, the defendant "is about to open and engage in the business of photography [at Bar Harbor] either under his own name or in the name of his minor son, Harry Bradley, or colorably as clerk, agent, or instructor of his said minor son.”
Under these allegations, assuming them to be fully proved, can the court, besides enjoining the defendant generally from carrying on the business in his own name, or that of his minor
The statement of the question discloses the answer. It must be evident that for the defendant to go into and carry on the business of photography at Bar Harbor as clerk or agent of any person, would violate the spirit and purpose of his agreement ■with the plaintiff. He would be carrying on the business though as clerk or agent. It does not matter how or in what name he acts, if he in fact carries on the business he agreed not to carry on. He is acting, he is breaking his promise, whether he acts as principal or agent. Located at Bar Harbor and carrying on the photograph business there as clerk or agent, he would be in direct competition with the business he had sold to the plaintiff, as much so as if he were doing the same acts in his own name.
The spirit of his agreement requires that he should not compete in this business with the plaintiff either directly in his own name, or indirectly as clerk or agent of some one else. In equity and good conscience he should abstain from both modes of competition. Under the allegations in the bill he can and should be enjoined from both. Whitney v. Slayton, 40 Maine, 224; Dwight v. Hamilton, 113 Mass. 175" court="Mass." date_filed="1873-09-15" href="https://app.midpage.ai/document/dwight-v-hamilton-6417372?utm_source=webapp" opinion_id="6417372">113 Mass. 175; Boutelle v. Smith, 116 Mass. 111" court="Mass." date_filed="1874-10-05" href="https://app.midpage.ai/document/boutelle-v-smith-6417814?utm_source=webapp" opinion_id="6417814">116 Mass. 111.
Exceptions overruled. Final decree affirmed.