Gilman v. Dwight, 79 Mass. 356

Gilman v. Dwight

79 Mass. 356 | Mass. | 1859

Bigelow, J.

The agreement on which the plaintiff relies is not open to the objection that it is invalid as being in restraint of trade. Tried by the tests which are usually applied to ascertain the validity of such agreements, it will be found to contain the essential requisites of a binding contract.

In the first place, it is only in partial restraint of trade. The defendant did not agree to relinquish entirely the practice of his profession, but only to discontinue it in the place where he had previously resided. Nor did he agree that no other physician should practice in the village or its vicinity for four years, but only that if a competitor with the plaintiff should establish himself there, he would repay to the plaintiff the sum which he had paid as the price or bonus for the good will and patronage which the defendant sold and undertook to guaranty to the plaintiff. This was nothing more than an agreement to repay to the plaintiff the sum paid by him to the defendant as upon a failure of consideration, in the event that the benefit of the contract should be lost to the plaintiff by competition in the practice of his profession.

In the second place, the contract was upon an adequate, and *359not merely a colorable consideration. And lastly, it was reasonable, that is, the restraint stipulated for was only such as to afford a fair protection to the party in whose favor it was made, and was not so large as to interfere with the interests of the public. Hitchcock v. Coker, 6 Ad. & El. 438, and 1 Nev. & P. 796. Mallan v. May, 11 M. & W. 653. Elves v. Crofts, 10 C. B. 241. Turner v. Evans, 2 El. & Bl. 511.

There is nothing in the nature of the business or profession to which the contract relates, which takes it out of the ordinary rules applicable to contracts in partial restraint of trade. The cases are numerous in the books, in which similar contracts entered into by attorneys, solicitors, apothecaries, dentists and surgeons have been upheld and enforced. Whittaker v. Howe, 3 Beav. 383. Horner v. Graves, 7 Bing. 735, and 5 Moore & Payne, 768. Hayward v. Young, 2 Chit. R. 407. Davis v. Mason, 5 T. R. 118. Atkyns v. Kinnier, 4 Exch. 776. Nicholls v. Stretton, 10 Ad. & El. N. R. 346. Sainter v. Ferguson, 7 C. B. 716.

Nor can we say that the terms of the agreement are so indefinite, uncertain and insensible on their face, that a court of law will not attempt to enforce them. We think a jury, aided by a reasonable construction of the contract, will be able to pass on all the questions which may arise in determining whether the defendant is liable for a breach of his stipulations. It would be quite easy and entirely competent to show what was usually known and called as the village of South Deerfield. Mallan v. May, 13 M. & W. 653. The “ community,” by forfeiting whose confidence the plaintiff was to lose his right to recover against the plaintiff, interpreted according to the subject matter, would probably be held to be the population residing in the village and its vicinity, among which the defendant practised his profession at the time of his contract with the plaintiff. Conduct on the part of the plaintiff, which should lead to a forfeiture of the confidence of the community in him, might reasonably be construed to be incompetency, immorality or acts of such a nature as to induce reasonable persons to forbear employing him in the practice of his profession. These questions, *360however, can be best determined when they shall arise on the testimony at the trial. Without deciding them definitely, we have only indicated the mode in which they would probably be solved, in order to show that the contract is not so uncertain and insensible that it cannot be enforced in a court of law.

Exceptions sustained.