145 A. 719 | Pa. | 1929
Argued February 12, 1929. In June, 1926, the defendants, Hyman Weller and wife, sold their grocery and delicatessen store at Somerset and Twenty-Seventh Streets, Philadelphia, to the plaintiff, Hyman Kunin. The sale included the good will of the business and the written contract relating thereto stipulates, inter alia: "In consideration of the conditions and provisions herein the said sellers shall not be engaged nor interested in any way whatsoever, directly or indirectly in any business similar to the one they are now selling to the said purchaser within a period of five years from date of settlement and within a radius of five city blocks from the above mentioned premises." Defendants thereafter gave plaintiff a bill of sale which contained. the further stipulation, viz.: "It is hereby understood and agreed that the said Hyman Weller and Mary W., his wife, are not to reopen, reëstablish or in any manner become interested, either as owners or employees in any business like or similar to the business hereby sold within a radius of five squares north, south, east or west of the premises herein mentioned for a period of five years from the date hereof."
In the spring of 1928 the defendants purchased a similar store and engaged in a like business at the corner of *163 Twenty-Fifth Street and Allegheny Avenue. As the streets are located in that section, this is four city blocks north and two city blocks east of their former location. On the contention that this violated the restrictions above quoted, plaintiff filed his bill for an injunction. Defendants answered responsively and the chancellor, who heard the case, found the new store violated the covenants and recommended the granting of an injunction to restrain its operation. The court in banc dismissed the exceptions filed thereto and entered a final decree accordingly; from which defendants brought this appeal.
A restriction, limited as is this to both time and space, is valid, and will be enforced in equity (Sklaroff v. Sklaroff,
Assuming that the raidus must be treated as the distance from the center to the circumference of a circle, appellants are not helped, for then the circle must be drawn five blocks to the north as they are on the ground, which includes the new store.
The decree is affirmed and the appeal is dismissed at the cost of appellants.