60 N.J.L. 5 | N.J. | 1897
The opinion of the eourt was delivered by
’ A sealed agreement is the basis of this suit. The parties to the deed were the plaintiff, Fishell, and the United States Credit System Company, a -corporation that has become insolvent and is now represented by Gray as receiver. By this instrument the plaintiff assigned to the company just designated the good will of a large and
“ Fourth. That the said party of the second part, for the consideration aforesaid, hereby agrees not to interest himself or engage in or have others interest themselves for his benefit or in his behalf in any manner, in any company, corporation or firm whose business is that of guaranteeing merchants or others against loss in business, and should the said party of the second part violate his agreement in this paragraph contained, the payments agreed to be made to him in the third paragraph of this contract are to thereupon cease and to be forfeited forever thereafter."
The action is brought to recover the moneys agreed to be paid by the company in return for the transfer above mentioned and the covenants contained in the agreement on the part of the plaintiff. The jury, under the instructions of the court, found for the plaintiff, and the motion now is to set aside that verdict.
The principal contention against a recovery on the deed in question argued and discussed in the brief of the counsel of the defendant is that the agreement in suit is illegal and void by reason of the stipulation above recited, to the effect that the plaintiff would not in any wise engage in the insurance business whose good will was transferred to the credit system company. The proposition posited is that as this part of the consideration for the defendant’s promise is illegal, the entire contract falls and that no part of it can be enforced. In support of this position a number of authorities are cited, some of which sustain it. The rule is generally laid down by the text-writers, in treating of the effect of an illegal element in the consideration of contracts, in terms so general that it embraces the class of stipulations which provide in too broad a form against competition in a given business. According to it, a contract not to compete in a certain business, within reasonable bounds as to place, is permissible, but if it pos
This distinction between a merely unenforceable promise in a matter of this kind and one that is criminal is illustrated in the decision of the case of Erie Railway Co. ads. Union Locomotive and Express Co., the principle being maintained that a stipulation that was not immoral would not vitiate or avoid the entire agreement. And if we regard the dictates of jus
The other points raised in the brief have been considered, but none of them, as it is deemed, are possessed of sufficient substance to require judicial exposition. They were properly disposed of by the trial judge.
Let the rule be discharged.