135 Iowa 748 | Iowa | 1907
Lead Opinion
On February 28, 1905, plaintiff commenced this action, which was originally to obtain damages and to restrain defendant from violating his agreements before stated; but before the case was brought on for trial such pleadings were filed as withdrew all claims for damages or for return of the consideration, and made plaintiff’s case simply one to enjoin defendant from opening a law office or practicing his profession in the town of Ackley for ten years from and after April 7, 1904.
The petition alleges that defendant is insolvent, and the proof is sufficient to establish that allegation — that is to say, after deducting exemptions, defendant has no property of any considerable value, subject to execution. That such covenants as defendant made in this case may be enforced by injunction is well settled by authority. Ropes v. Upton, 125 Mass. 258; Beatty v. Coble, 142 Ind. 329 (41 N. E. 590); Althen v. Bruland (N. J. ch.), 36 Atl. 479; Dwight v. Hamilton, 113 Mass. 175. But defendant contends that, taking the contracts as a whole and in their entirety, the penalty for violation was fixed in the
Going back now to the contracts, and construing them in the light of the attendant circumstances and of the subsequent conduct of the parties, we think it clearly appears that the penalty provided in this cage was not regarded by either party as the price for defendant’s doing what he had expressly agreed not to d'o. He sold his good will' to plaintiff, and agreed not to go into the practice or tó open an office for a given period. He went into another State, and before returning, wrote a letter to plaintiff, in- which he recognized the binding force of his covenant, and that he had no right to return to Ackley and practice law. After his return to Ackley, he stated to various parties that he had no right to stáy in Ackley and practice law. He sold the $100 note given him by plaintiff in December, 1904, after his return to Ackley, and has never returned .or offered to return either the $200 in cash, or the amount for which he sold the $100 note. He still holds the $300 note. Consideration of all these facts leads us to the conclusion that it was not intended by either of the parties that the penalty named in the contract should be the only price of defendant’s breach of agreement. It was not expected that the forbidden act might be done upon payment of the sum specified. Even if that were the proper construction, defendant has neither paid nor offered to pay the price. Surely, under such circumstances, defendant was not entitled to a dismissal of the petition. Of course plaintiff is not entitled to both remedies; nor does he ask it. He seeks an injunction, and waives his right to enforce the penalty; and, having secured an injunction, he cannot defend against the $300 note.
The trial court was in error in dismissing the petition, and the cause will be reversed for a decree in harmony with this opinion.— Reversed and remanded.
Dissenting Opinion
(dissenting):— Conceding the correctness of the general rule affirmed in the majority opinion, I think it equally true that in this class of contracts, as in others, the intention of the parties is to prevail. If, then, the language of the agreement, when read in its entirety in the light of all the attendant circumstances, indicates that the parties contemplated a possible violation of its terms by the seller, and stipulated the remedy of the purchaser in such case to be the right to demand and recover a fixed and certain sum in damages, equity will not entertain jurisdiction to enforce specific performance by the negative process of injunction. While the natural right of a man to pursue his chosen calling wherever he may elect to make his home is one which, within certain limits he may sell or barter away, yet it is a settled principle of public policy that such agreements will be closely scanned by the courts, and, in cases of doubt, will be given the construction most favorable to the unrestricted liberty of the parties to engage in any lawful enterprise or business. In my opinion, the contract in this case, as expressed in the written agreement for the sale of the defendant’s business, and emphasized by .the further stipulation indorsed on plaintiff’s note, clearly indicates a mutual intention and understanding that plaintiff’s only remedy in the event of defendant’s resumption of practice in Ackley was in damages.
Such being my view of the construction of the contract, I think the judgment below should be affirmed.