9 How. Pr. 335 | N.Y. Sup. Ct. | 1854
The important question raised by the demurrer in this case, and the only one I propose to discuss concerns the validity of that clause in the contract between the parties which operates as a restraint upon the defendant from practicing as a physician in the county of Oswego.
That an agreement in general restraint of trade is utterly void was decided at least a century and a half ago, and has been the unquestionable law ever since; but the very case which settled this doctrine irrevocably, also held that a promise to restrain one’s self from trading in a particular place, or within a lim
Second. As to the adequacy of the consideration, the cases are somewhat conflicting, and it is difficult to extract any very definite rule upon the subject. In the course of the argument of the case of Hitchcock agt. Cooker (6 Ad. & El. 438) Alderson observed that “ if the consideration were so small as to be colorable the agreement would be bad;” while in Leghton agt. Wales (3 M. & W. 551) Parke remarked that, “ Since the case of Hitchcock agt. Cooker the court can not inquire into the extent or adequacy of the consideration. In the case in 8 Mass. 223, the pecuniary consideration of one dollar was held to be sufficient to uphold the contract. Smith, in his leading cases,
This brings me to the last inquiry, to wit, whether the restraint is reasonable. On this point it is more difficult still to lay down any precise rule, and in truth every case must be determined substantially upon its own facts and circumstances. In Brown agt. Gay (4 East. 190) a lawyer restrained himself from practicing in London and within a circuit of 150 miles from it, and this was held not to be an unreasonable restraint. In Denis agt. Mason (5 Term Rep. 118) a surgeon restrained himself from practicing within ten miles of the plaintiff’s residence, and this was upheld. On the other hand, in Homer agt. Graves, (7 Bing. 743,) an agreement that a surgeon dentist would not practice within 100 miles of York was held void, on the ground that the distance was unreasonable ; and in Lawrence agt. Ridder (11 Barb. S. C. R. 641) a restriction which embraced all the state of New-York west of Albany was held void as covering too extensive a territory. In Proctor agt. Sargent (2 Mann. & Gr. 20) an agreement not to sell milk within five miles of Northampton square was held reasonable. So in Noble agt. Bates, (7 Cow. 307,) an agreement not to carry on a trade within 20 miles of plaintiff’s residence was sustained as not unreasonable ; and in Parkins agt. Lyman (9 Mass. 522) a contract not" to trade from Boston writh the northwest coast of America for seven years was held unobjectionable. Without further citation, these cases are sufficient to show, that while no precise rule can be laid down, the general tenor of the decisions is such as to allow, if not the “ largest liberty,” yet a pretty liberal scope to these contracts, both in respect to extent of territory and the amount of population embraced within the designated
The result, therefore, is, that there must be judgment for the plaintiff on the demurrer, with leave to the defendant to answer on payment of costs.