27 Mich. 15 | Mich. | 1873
This was a bill for a perpetual injunction to restrain the defendants from carrying on the business of putting
The defendants Miller and Decker answered this bill, and defendant Akeley demurred generally. The case was heard in the court below upon pleadings and proofs, and the bill dismissed. The complainant appeals to this court.
The ease stated in the bill and sustained by the evidence may be stated substantially as follows: The complainant in September, 1870, and for some time previous thereto, was engaged in carrying on the business of a general retail hardware store in the city of Grand Haven, including the tubing and all necessary apparatus and tools for sinking the drive wells above mentioned, and in connection therewith was also engaged in putting down such wells for those who chose to employ him. And two of the defendants, George W. Miller and Adolphus M. Decker, as partners under the style of “ George W. Miller & Co.,” kept a like hardware store in the same city, and, like the complainant, kept on hand the tubing and other materials used in putting down such wells, and were engaged in putting them down for those who chose to employ them.
It does not clearly appear how extensive was the territory in which any of the parties were then engaged in putting down wells, or in which customers were supplied by them with the articles in question; but so far as does appear it is fairly to be inferred that this business was mainly confined to the city and a comparatively small portion of country around it, and there is nothing from which we can reasonably infer that it extended beyond the limits of the county of Ottawa, nor, in fact, so far as to include within its limits any other village or city the business of which would be likely to warrant or secure the establishment of a retail hardware store. And both the complain
The items footed up amounted to................. $296 19 To which was added: “ Add for freight, 5 per cent. 14 80
$310 99
At the foot of the above bill and preceding the signature of Miller & Co. was written the following: “In consideration of the above sale we agree not to keep well-drivers’ tools or fixtures, and not to engage in the business of well-driving after this date.
“Received payment.
(Signed) “ Geo. W. Miller & Co.”
The defendants, Geo. W. Miller & Co., continued in the same general retail hardware business as before, with the exception of the particular branch of it pertaining to the drive-well business (which seems to have been but a comparatively small part of it), until January or February, 1871 (the bill says January, the answer, February, and the evidence does not show which), when the firm of George W. Miller & Co. was dissolved, and the dissolution publicly announced. And immediately thereafter the said George W. Miller and the defendant Akeley entered into a new partnership under the former name of George W. Miller & Co., in the same retail hardware business, which they carried on
In April, 1871, the new firm of George W. Miller & Co,, (composed of Miller & Akeley), commenced keeping and selling the same kind of materials and articles pertaining to the drive-well business, and went into the business of sinking the same kind of wells, which, by the agreement mentioned above, the old firm had bound themselves not to do — Akeley, as he admits by his demurrer, having notice of that agreement. And soon afterwards the defendant Decker also commenced keeping the same kind of articles in connection with his hardware business, in disregard of the agreement of the firm of George W. Miller & Co., to which he, as a member of that firm when the agreement was made, was a party. And both said new firm of George W. Miller & Co. and the said Decker still continued in such well-driving business and in the sale of such prohibited articles, in spite of complainant’s remonstrances, down to the time of the filing of the bill.
The only ground of objection relied upon by the defendants in this court, to the case made by complainant, or the relief asked, are (stating them in their logical order):
1. That the contract relied upon being in restraint of trade, must be presumed void unless shown to be based upon some special and peculiar consideration; and that the only consideration paid being the cost price of the goods at Grand Haven, this is not sufficient to support the restraint contracted for, though the contract should in other respects be valid; and, 2d, that the restraint imposed upon Miller & Co. by the contract, is void, because general and unlimited as to place, forbidding the vendors to enter upon the prohibited business anywhere.
Now, the circumstances of the present case, the nature of the business, the situation, objects and interests of the parties, are precisely of the character which bring the case within these principles as recognized by all the authorities for the last one hundred and fifty years, at least. The fact that complainant paid no more than the cost of the articles at Grand Haven can make no difference. Where a consideration recognized by law as being valuable is paid, the law very properly allows the parties to judge for themselves of the sufficiency in value of such consideration for their contracts. We cannot, therefore, enter into the question whether the consideration was commensurate in value with the restraint imposed. See Hitchcock v. Coker, 6 Ad. & E, 438; Pilkington v. Scott, 15 M. & W., 657; Hartley v. Cummings, 5 C. B., 247. And there is no reason for holding that, without the restraint contracted for, complainant would have been willing to purchase for the price he gave, nor can we say that the vendors could have sold at that price without such stipulation. In fact, we must infer that, in their opinion they could not readily have done so without it, or they would not have given it. It is clear, at all events, that they thought the sale with the stipulation an advantageous one or they would not have made it. The contract must, therefore, be held fair, reasonable and valid, unless too general and unlimited as to place, as insisted under the second objection.
It is true, there is no limitation as to place or extent of territory over which the restriction was to extend, by the express words of the contract. It is entirely silent upon this point, and it is urged that the restraint is therefore general and unlimited as to territory, and would apply to
The sale to the complainant with the restriction contracted for was somewhat analagous to the sale of a goodwill, differing mainly in the fact that it was a sale of only a portion of the business, and did not include the building or business stand, which usually, if not always, accompanies the sale of a good-will, strictly so-called. And though there may be some difficulty in defining the exact territory by metes and bounds over which this restriction in some of its phases was intended to apply, it is at least clear enough that it was not intended to be unlimited a3 to area, but that in any fair view which can be taken of it, it is confined to a comparatively small extent of territory and W’holly unobjectionable on this ground, fair and reasonable between the parties, and not materially prejudicial to the public; and that it should be enforced as far as capable of enforcement. But if the contract were equally susceptible of the construction claimed for it by the defendants (which we think it is not), as parties are not lightly to be presumed to intend a violation of the law, it would still be our duty, according to the well settled rules of law, to adopt the construction which would make it conform to the law, rather than that which would make it violate the law. See Church Wardens of St. Saviour, 10 Rep., 67 b.; Archibald v. Thomas, 3 Cow., 284; Coke Lit. 42, 183; Attorney General v. Chapman, 31 Eng. L. & Eq., 142; Many v. Beekman Iron Co., 9 Paige, 188; Shore v. Wilson, 9 Clark & Fin., 397.
But, second, it is equally clear that the restraint against keeping or selling such property was not intended to be confined strictly to the city limits, but to extend far enough to prevent a mere evasion by keeping and selling such articles in such immediate proximity to the city as materially to lessen the value of the restriction. It is, therefore, safe to say that the vendors were not to be at liberty to keep or sell such articles within one mile of the city limits; and as their own interest would be a sufficient protection against their establishing a place for the keeping and sale of such articles anywhere between there and the next city or village, as they could expect few customers, it is unnecessary to discuss the right to keep or sell within that intervening space.
But, third, Miller & Co., were intended to be allowed to establish a hardware store in any other city or village where the business would warrant its establishment, and in connection therewith to keep and sell the articles in question and engage in putting down wells in anyplace where their customers should choose to employ them.
The decree of the court below dismissing the bill must be reversed with costs; and a decree must be entered in this court for a perpetual injunction upon the principles, and to operate within the limits, above indicated.
The defendants, Miller and Decker, are bound individually, as well as jointly, by the direct effect of the contract. But Akeley, not being a party to the contract, is bound only as a partner of Miller (he would be equally bound if a partner of Decker), and during the continuance of such partnership; and, upon its dissolution, would not be individually bound by the contract. This must be observed in framing the decree.