32 Md. 561 | Md. | 1870
delivered the opinion of the Court.
This is an appeal from an order granting an interlocutory injunction to restrain the appellant and his father, Francis Guerand, from carrying on a dyeing and scouring establishment, at No. 124 North Howard street, in the city of Baltimore, and from advertising the same in any newspaper, or by card, circular or otherwise.
In determining upon the propriety of the order appealed from, we are confined, on this appeal, exclusively to the bill and the exhibits filed therewith for if the answer, which is required to be filed as a condition precedent to the right of appeal, could be taken into consideration, we should be reviewing the order by the light of other facts than those presented to the Judge below and upon which he acted. This would not be at all consistent with the exercise of mere appellate jurisdiction, to which this Court is confined.
The appellee, the complainant below, by his bill and exhibits, presented, we think, a clear case for the injunction that was granted. By the lease of the 17th of October, 1859, Francis Guerand, the father of the appellant, let to Jean Feuillan and the appellee his house and lot, No. 124 North Howard street, theretofore used as a dwelling, store and dyeing and scouring establishment, for the term of ten years, at an annual rent of $1,000; and in this lease we find incorporated an agreement by which the lessor sells to the lessees the custom, good-will, name and utensils then in, upon and about the leased premises, theretofore known as “ Guer and’s Dyeing and Scouring Establishment,” together with the right to use the same name and style as theretofore, and carry on the business of dyeing and scouring, for the sum of $3,000, payable in instalments; and Guerand, the lessor, covenanted that, on the payment of the purchase money for the custom, good-will, name and utensils sold, he would not, at any time thereafter, “ exercise or conduct, in the city of Baltimore, the trade or profession of a dyer or scourer, nor directly or indirectly compete with the aforesaid lessees and vendees for the good-will and custom sold as aforesaid.”
By the contract the restriction on the exercise of the trade in the city of Baltimore is plain and unequivocal. Guerand covenanted that he would not, at any time thereafter, be
As a general rule, it is true, a contract, whether under seal or otherwise, in unlimited restraint of trade, or of any particular vocation, is absolutely void, as being contrary to public policy, as well as oppressive in its operation upon individual industry. This has been the law from an early period in the history of English jurisprudence, as is abundantly shewn in the elaborate judgment of Lord Macclesfeild, in the leading case of Mitchel vs. Reynolds, 1 P. Wms., 181. But while this is the general rule, the same leading case just referred to fully establishes the principle that contracts only in partial restraint of any particular trade or employment, if founded upon a sufficient consideration, are valid and enforcible.
The restraint, however, to be lawful, must be confined within reasonable limits. “Where it is larger and wider than the protection of the party with whom the contract is made can possibly require,” said the Court in Hitchcock vs. Coker, 6 Ad. & El., 454, “ such restraint must be considered as unreasonable in law, and the contract which would enforce it must be therefore void.”. If the restraint therefore be general, and not confined to any particular locality, the shortness of the time for which it is imposed will not make it good. Ward vs. Byrne, 5 M. & W, 548. But if it be reasonable as to locality, the fact that it is indefinite as to its duration will not affect its validity. Add. on Conts., 100. “ Contracts restraining the exercise of a trade or profession in a particular locality,” says the author just cited, “are good and valid when there is a fair and reasonable ground for the restriction, as in the case of the sale of the good-will of a trade or business carried on in a particular locality, where the vendor covenants or agrees not to carry on the same business in the same
It is objected to the present covenant that it is too comprehensive in its restriction; that, as it restrains the covenantor indefinitely as to time from exercising his trade at any place within the city of Baltimore, it is therefore void. But we perceive nothing in it to render it obnoxious to the objection. The authorities sustain restrictions more comprehensive than that imposed by this covenant; as in the case of Green vs. Price, 13 M. & W., 695, where a perfumer sold to his co-partner his share of the business of the firm, and covenanted not to carry on the same business in the cities of London and Westminster, or within six hundred miles from those cities. The Court of Exchequer held the covenant to be valid as to the restraint of the practice in London and Westminster, but void as to the residue; and that judgment was affirmed in the Exchequer Chamber, after full argument. 16 M. & W., 346. And in the case of Atkyns vs. Kinnier, 4 Exch. Rep., 776, there was a covenant by a surgeon not to practice or reside at any time within two and a half miles of the plaintiff’s residence in London, and such covenant was held to be valid, and it was declared to be no objection to it that it imposed the restriction during the life of the covenantor, “ for that,” said Parke, B., “ enables the good-will of the business to become the subject of purchase and sale.” See also the cases of Davis vs. Mason, 5 T. Rep., 118; Bunn vs. Guy, 4 East, 190; Mallan vs. May, 11 M. & W., 665, where the restrictions were larger than in the present case, and yet the contracts were adjudged good.
This, it must be borne in mind, is the case of a contract for the sale of the custom and good-will, in connection with the utensils of an establishment, for a valuable consideration; and if such restriction as is attempted to be imposed by it be not allowed, the subject of the contract would never be saleable, as it could at any moment be rendered valueless by the com
Whether the consideration for the restraint is adequate or not, is a question that the Court will not inquire into. It is sufficient that the contract shows on its face a legal and valuable consideration; but whether adequate or inadequate to the restraint imposed, must be determined by the parties themselves, upon their own view of all the circumstances attending the párticular transaction. If it were otherwise, it would be the Court and not the parties, that would make the contract. All that the Court is required to do, in passing upon the validity of the covenant, is to determine whether the restraint is reasonable and consistent with law, and whether there be a legal consideration to support it. This is now the established doctrine, as decided in the cases of Hitchcock vs. Coker, 6 Ad. & El., 439; Archer vs. Marsh, 6 Ad. & El., 966; Leighton vs. Wales, 3 M. & W, 551; Pilkington vs. Scott, 15 M. & W., 657; Sainter vs. Fergusson, 7 C. B., 716. And here there certainly appears a legal consideration for the covenant.
It was urged in argument, that the restriction should not, by construction, be extended beyond the period of the partnership between the parties to whom the lease was made, and
The covenant being valid, the next question is, does the fact that the business has been re-established or resumed in the name of the son, avoid a breach of the covenant of the father? We think not. The allegation of the bill is, that the name of the son is used as a mere cover and blind to conceal the interest of the father. If this be so, as we are bound to assume on this appeal, the case is unquestionable. The father’s covenant is that he will not, directly or indirectly,
But, it is contended, that if there be a breach of the covenant, the remedy at law is adequate, and, therefore, a Court of Equity should not interfere. To this proposition, however, we do not accede, as the authorities fully maintain the right and duty of a Court of Equity to restrain, by injunction, the violation of contracts of the character of the one before us. Harrison vs. Gardner, 2 Madd. Rep., 198; Williams vs. Williams, 2 Swanst., 253; Whittaker vs. Howe, 3 Beav., 383; Catt vs. Tourle, 4 Ch. App. Cases, 659. We shall, therefore, affirm the order of the Court below granting the injunction.
Order affirmed.