King v. . Fountain

35 S.E. 427 | N.C. | 1900

On 26 October, 1899, the defendant was engaged in the livery business at Greenville, N.C. and on that day for a valuable consideration sold to the plaintiff his teams, vehicles, etc., and agreed that he would not run or operate any other livery business in the town of Greenville for the period of three years from that date.

Soon thereafter the wife of the defendant opened and engaged in the livery business in said town and employed the defendant, her husband, to superintend the business, which he is now operating and conducting in said town. On the hearing of a restraining order the injunction was dissolved and the plaintiff appealed.

The general rule was, and still is, that contracts in restraint (198) of trade and the like are void on the ground that they are against public policy, similar to contracts illegal and contra mores. Clark Contracts, 451-457.

This rule has been modified in order to protect the business of the covenantee or promisee when it can be done without detriment to the public interest. The reasonableness of such restraint depends in each case on all the circumstances. If it be greater than is required for the protection of the promisee, the agreement is unreasonable and void. If it is a reasonable limit in time and space, the current of decisions is that the agreement is reasonable, and will be upheld.

In the present case, the restriction is confined in terms to a single county town and to a period of three years. This seems to this Court not unreasonable. The restriction applies to one individual only, and it is quite probable that if the demands of that place require more extensive livery business, some other enterprising citizen will supply the demand, especially if it be profitable. The defendant has received his consideration, and good faith requires him to perform his agreement. A husband may be his wife's agent, but it requires but little scrutiny to look through these facts and discover who controls the business and enjoys the profits.

The whole ground of this contention was disposed of in Baker v. Cordon,86 N.C. 116. There, the defendant sold his stock of drugs, medicines, etc., to the plaintiff, agreeing not to carry on said business in the town of Tarboro whilst the plaintiff was engaged in it. In a few months he, the defendant, bought other drugs, etc., and sold them to two other parties and promptly engaged in selling them as the manager and superintendent of his vendees. It was held that his contract with the plaintiff was valid, and that engaging in the business as above stated was a breach thereof. That seems to be decisive of the present case.

The defendant referred to 5 A. E. Enc. (2 Ed.), 480, to (199) show, as we understand him, that a livery man is a common carrier. The author there has under consideration the distinction between the liability of carriers to passengers and his liability for failing to carry goods, holding that the former depends upon negligence and the latter upon contract of bailment, being liable in the latter case for all injuries not caused by the act of God or the public enemy. The same distinction is pointed out in Boyer v. Anderson, 2 Pet. (U.S.), 155. We are unable to make any application of that doctrine to the present case, which is simply for a breach of a contract in the sale of personal property.

Reversed.

Cited: Disosway v. Edwards, 134 N.C. 257; Anders v. Gardner,151 N.C. 605; Faust v. Rohr, 166 N.C. 191.

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