105 So. 538 | Miss. | 1925
Lead Opinion
Appellant's position is, of course, that his bill states grounds for relief. Appellees' position is that the contract sought to be enforced by appellant's bill is violative of our anti-trust statute (sections 5002 and 5003, Code of 1906; sections 3281 to 3285 inclusive, Hemingway's Code), and if mistaken about the contract being unenforceable, appellees contend nevertheless that appellant's bill is insufficient to entitle him to the relief prayed for.
Appellant made substantially the following case by his bill: That appellees, prior to their sale thereof to appellant, conducted a restaurant and cafe business in the city of Grenada which they had built up into a good paying business under the name of "Hole in the Wall;" that, after the said restaurant business had been so built up, appellees sold it to appellant, for which the latter paid the sum agreed upon; that in addition an important and material part of the consideration for the purchase of said restaurant business by appellant was that appellees would not thereafter enter into a like business in competition with appellant in the said city of Grenada; that the contract evidencing the sale of said restaurant business was in writing, and, among *254 other provisions and stipulations, contained the following:
"The business hereby conveyed being that heretofore conducted by the grantors (appellees) under the name of `Hole in the Wall,' in the city of Grenada, Miss. Grantors further agree that they will not open up or conduct a restaurant or cafe business in the said city of Grenada, Miss."
The bill further alleges that appellees had built up a business in Grenada and that locality where the same was carried on, which had a good will value which was also a part of the consideration which induced appellant to purchase the same; that without the stipulation in the contract that appellees would not engage in a like business in the city of Grenada, appellant would not have purchased said business, and that was distinctly understood between the parties; that at the time of appellant's purchase of said restaurant business and ever since that time, there were and have continued to be other cafes and restaurants in the city of Grenada available to the public, whereat the public may be served without resorting to any particular restaurant; that appellant in succeeding appellees in the restaurant business in said city merely stepped into appellees' shoes, leaving the public unaffected in so far as this particular kind of business is concerned; that while the contract evidencing the purchase is not limited by its terms to any particular period of time, it is limited as to space and precludes appellees from conducting a similar business within a restricted area in opposition to appellant.
All contracts and agreements in restraint of trade are not violative of our anti-trust statute. It is only those (to use the language in part of section 198 of the Constitution) that are "inimical to the public welfare." Section 198 of the Constitution is a mandate to the legislature to enact laws to prevent trusts, combinations, contracts, and agreements inimical to the public welfare, *255
Whether the legislature has the power to go beyond the constitutional mandate and prohibit trusts, combinations, contracts, and agreements which are not inimical to the public welfare has not been decided. It has been decided, however, that the legislature in adopting our anti-trust statute has not yet gone beyond the constitutional mandate. Brown v. Staple CottonCo-operative Association,
Our court has, as has the supreme court of the United States in construing the Sherman Act (U.S. Comp. St., section 8820 et seq.), applied the rule of reason in construing our anti-trust statute. It had been held by this court before the decision ofBrown v. Staple Cotton Co-operative Association, supra, that trusts, combinations, contracts, and agreements, which were not inimical to the public welfare, were not violative of our anti-trust statute. But, in the Brown case, this question was considered again and discussed fully, and that rule reaffirmed in unmistakable terms. The court there said that the statute did not outlaw all contracts in restraint of trade, but only such as in their nature and effect were inimical to the public welfare; that there had to be an undue and unreasonable restraint of trade injurious to the public good.
Applying that principle to the case in hand, there appears to be no difficulty in reaching the right conclusion. To enforce the contract involved in this case, under the allegations of the bill, would not make a single restaurant less in the city of Grenada. By virtue of the contract, appellees went out of the restaurant business and appellant went into the business in their stead. The public was left with the same restaurant facilities that it had before. There were other restaurants in the city of Grenada than the "Hole in the Wall" to which the public could resort. As the result of appellant's purchase of appellees' business, there was no lessening of *256
competition in Grenada in that business. And even if there had been that would not have been determinative of whether the contract was valid or not. Many contracts are in restraint of trade to some extent. That is often necessary to legitimate business. It is only unreasonable restraint of trade which is condemned by law — that restraint of trade which is injurious to the public welfare. The contract here involved, as will be observed, limits the area in which appellees bound themselves not to go into the restaurant business to the city of Grenada. There was no limit of time fixed in the contract for so refraining, but that was not necessary. There seems to be practically no conflict in the authorities to the effect that a contract of this character, otherwise reasonable, is not invalid because it contains no stipulation as to time limit. 6 R.C.L., p. 799, section 201; Sivley v. Cramer,
We are of opinion furthermore that the allegations of the bill are sufficient to bring the facts of appellant's case within the definition of what constitutes a reasonable restraint of trade. In other words, the allegations of the bill show that the enforcement of the contract between appellant and appellees would not be injurious or inimical to the public welfare.
Reversed and remanded.
Concurrence Opinion
I think the law applicable to the facts is correctly announced in the opinion of Judge ANDERSON. I am not prepared to say that some of our anti-trust statutes do not prohibit specific acts whether inimical to the public or not; neither do I desire to express an opinion, or an intimation, that section 198 of the Constitution limits the power of the legislature in enacting anti-trust legislation; nor to express any opinion as to whether the legislature is not the sole judge of what is and what is not inimical to the public welfare, or whether it is a *257 judicial question in which the opinion of the legislature is reviewable. I prefer to withhold any announcement on each of these questions until they shall be properly presented for decision.
