88 N.W. 713 | N.D. | 1901
The plaintiff brings this action upon a covenant contained in a written contract executed by the defendants R. L. Met-calf and Meldonetta Metcalf in favor of one E. Mapes, and duly assigned by said Mapes to the plaintiff prior to the commencement of this action. Plaintiff demands a money judgment, and an accounting by the defendants for moneys alleged to have been received by them under said contract. Thomas J. Baird and Mary .A. Rayburn are sureties on an undertaking given to secure said contract, and are made defendants herein. The defendants answered jointly, admitting the execution of the contract and bond in suit, but denying all liability'' thereunder, and denying that Mapes had complied with his covenants in said contract. The trial was to the court without a jufy. The issues of fact as to the amount of plaintiff’s damages were not tried, and no accounting was had. Prior to the trial of the case in the district court, upon stipulation of counsel for the respective parties an order was entered of record by the presiding judge to the effect that the “issue as to damages' plaintiff may be entitled to recover herein be, and the same hereby is, reserved for trial and determination at such future time as may be fixed by the court, in the event that, after the trial and determination of the other issues in this case it shall be necessary to try such issue.” Evidgnce was offered upon all other issues than that reserved, and, from the facts established by the evidence so offered, the court found, as a conclusion of law, that the plaintiff was not entitled to recover upon said contract. Judgment was ordered and entered dismissing the action, and awarding costs to the defendants. Both parties have appealed from the judgment. Plaintiff’s appeal was perfected on July 25, 1901, and is taken upon the judgment roll proper. Upon this appeal error is predicated solely upon the decision of the trial court. The particular assignment relied upon is the conclusion of the trial court that the contract in suit is void and that no action can be maintained thereon.
After the plaintiff’s appeal was perfected the defendants took a cross appeal from the judgment, with a view to securing the review of the entire case in this court upon the evidence. To this
We now turn to plaintiff’s appeal. The only question for determination is whether the contract sued upon is void. It appears from the findings of fact contained in the record that on and prior to January 2, 1894, E. Mapes was the owner and publisher of a newspaper known as the “Nelson Count}'' News,” published at Lakota, in Nelson county, and operated a job-printing plant in connection therewith. The defendants R. L. Metcalf and Meldonetta Metcalf were the owners and publishers of a newspaper known as the ^Observer,” published at the same place, and they also operated a job-printing plant. On" January 2, 1894, the parties entered into a written contract, which, as far as material, is as follows: “ * * * For and in consideration of the discontinuance of the Nelson County News, now published as aforesaid, on or before February 9th, 1894, and of the covenants and agreements of the said E. Mapes to do no job work or printing of any kind or nature whatsoever for parties resident of Lakota, and agreeing to neither re-establish the Nelson County News as a newspaper at Lakota, or to directly or indirectly countenance or assist in the establishment of another newspaper at Lakota, or at any other point in Nelson county,'for the term of "five "years from the date of this agreement, the said R. L. Metcalf and Meldonetta Met-calf, for themselves, their heirs, executors, and assigns, agree to and with the said E. Mapes, his heirs, executors, and assigns, to pay to the said E. Mapes one-half of all moneys received by them for the publication of legal notices for a term of five years from date * * * That these payments shall be made on the first day of each month for such publications as shall be completed at any time during the preceding month. * * * That they shall be allowed the sum of twenty cents per thousand ems for composition on all legal notices as above described. * * * It, however, is especially understood and agreed that, if at any time the said R. L. Metcalf and Meldonetta Metcalf shall make a bona fide sale of the plant referred to, they shall be allowed to com
The trial court found, as a conclusion of law, that the contract in question is in restraint of trade, and is void as against public policy, and that no action, therefore, can be maintained thereon. The appellant assigns error upon this conclusion, and the correctness of this conclusion is the only question presented for determination. We are not able to agree with the trial judge that the contract in question is void. The principles upon which contracts in restraint of trade have been held void by the courts of England .and this country proceed upon the theory that the public welfare demands that private citizens shall not be allowed, even by their own voluntary contract, to restrain themselves unreasonably from the prosecution of trade, callings, or professions, or from embarking in business enterprises in the promotion and encouragement of which the public has an interest. Just what amounts to a reasonable restriction becomes a question of much delicacy, to be determined upon the facts peculiar to each case. In this case, however, we are freed from the embarrassment of judicially determining whether the restraints imposed by this contract are reasonable or unreasonable, by an express statute upon the subject. Section 3926, Rev. Codes 1899, provides that “every contract by which any one is restrained from exercising a lawful profession; trade or business of any kind otherwise than as provided by the next two sections is to that extent void.” Section 3927, Rev. Codes 1899, provides that “one who sells the good will of a business may agree with the buyer to refrain from carrying on a similar business within a specified county, city or a part thereof so long as the buyer or any person deriving title to the good will from him carries on a like business therein.” “The good will of a business is the expectation of continued public patronage, but it does not include the right to use the name of any person under whom it was acquired.” Section 3486, Rev. Codes 1899. “The good will of a business is property,
One further question remains: The contract contains a stipulation that, in case of any disagreement as regards its interpretation, the same shall be settled by arbitration. Counsel for defendants urge that the present action cannot be maintained, because it does not appear that the defendants have refused to arbitrate. This contention cannot be sustained. It is not necessary to consider whether the arbitration provided for was intended to be a condition precedent to an action on the contract, or whether the agreement to arbitrate covers any of the questions involved in this action, for the reason that the defendants, by denying all liability under the contract, have waived any right which they may have had to submit any question here involved to arbitration. 2 Am. & Eng. Enc. Law, p. 581, and cases cited in note 2.
For the reason stated, the judgment will be reversed, and the case remanded to the district court for further proceedings, and it is so ordered.