163 A. 290 | Pa. | 1932
Argued September 27, 1932. This appeal is from a decree dismissing a bill to restrain defendant from violating the terms of a contract by which he agreed not to "reëngage in the practice of medicine and surgery within the radius of fifteen miles from the Borough of Boswell for a period of fifteen years from and after the date of this agreement."
The important matter is the meaning of the words "within the radius of fifteen miles." The plaintiff contended that they meant what they said, but the court adopted the view presented by defendant, and held that the words meant a "distance to be computed by the nearest traveled way." No decisive element of fact is in dispute.
Both parties were duly licensed physicians, the defendant residing in the Borough of Boswell and practicing *194 his profession in and about that place prior to the contract in suit, and the plaintiff in some other place. On March 2, 1928, they agreed in writing that defendant would sell to plaintiff the dwelling house and lot in which defendant resided, his office equipment, surgical instruments and certain furniture; that he would "turn over" to plaintiff "his said practice and business and goodwill thereof"; that he would "also introduce and recommend" plaintiff to defendant's "patients, friends and others as his successor, and will use his best endeavors to promote and increase the prosperity of said practice and business." Defendant also agreed not to practice, as has been said, "within a radius of fifteen miles from the Borough of Boswell for a period of fifteen years from" date. For that, the plaintiff agreed to pay $15,000, one-third cash, two-thirds by purchase-money mortgage, payable at the rate of $1,000 annually with interest at 4% per annum. The parties made settlement accordingly April 7, 1928. Plaintiff took possession and went on with his professional work. He made the mortgage installment payments as required.
On or about October 1, 1929, defendant opened an office for the practice of his profession at 643 Franklin Street, Johnstown, Pennsylvania, where as the court found "he has [since] continuously practiced medicine and surgery," that office being "within the radius of fifteen miles from Boswell." By direct line, the distance from the place in Boswell sold by defendant to plaintiff, at which defendant formerly practiced, is 12.2 miles. It is therefore clear that defendant is permanently engaged well within the circle in which he agreed that he would not practice, and from which he agreed to withdraw, and in which he agreed to assist plaintiff in establishing himself. As the facts are not disputed, it is unnecessary to refer to the numerous specific instances of his professional work stated in the record in the circle from which he cut himself off for the consideration paid and agreed to be paid to him by the plaintiff. It is not contended *195
that the agreement is unreasonable. See McClurg's App.,
We cannot assent to the construction of the contract made by the court below. The meaning of the words used to define the territory from which defendant agreed to withdraw is plain, unambiguous and definitive, easily given practical effect. The distance "by the nearest traveled public way or road" from the Boswell Borough line to defendant's office in Johnstown is 15.4 miles. If the defendant, as his argument implies, intended to describe a district irregular in shape and extent, as dependent on accessibility by public roads, he should have said so. Such a boundary would necessarily have elements of uncertainty, as there might be dispute about which of several was the nearest traveled public way. These parties expressed themselves clearly in words of plain and simple meaning; that sense is not varied by the context. It is not suggested that there is any mistake about what they intended to say. The court has no power to substitute for "a radius of fifteen miles" the words "fifteen miles by the nearest traveled public way or road" because the context and the circumstances exclude such inference. See Betts's App., 10 W. N.C. 431; Cook v. Johnson,
We cannot accept the suggestion that plaintiff is barred by laches. It is said that plaintiff visited defendant in his office on October 7, 1929, and made no complaint about the violation of the agreement until October, 1930. But the plaintiff and two other witnesses testify that when plaintiff protested, defendant replied "Well I am just going to do pediatrics and won't interfere with you." He also testified that he complained subsequently and only brought suit when "I was forced to."
What was said by this court in McClurg's App.,
The decree is reversed, the bill reinstated, and record remitted with instructions to restrain defendant from further violation of his contract, costs to be paid by defendant.