11 Barb. 127 | N.Y. Sup. Ct. | 1851
It is contended that by the death of the intestate the cause of action, if any, is extinguished; .that it is personal, and does not survive to his representatives. But the covenant was broken before the death of the intestate, and the right of action therefore was not affected by that event. Upon the death of the covenantee, his interest vested in his personal representatives, for the executors or administrators of any person are implied in himself. (Hurlstone on Bonds, 115. 3 Bac. Ab. 59. Toller, 157, 437. Platt on Cov. 453, 520. Chit. on Cont. 96. Siboni v. Kirkman, 1 M. & W. 418.) In some cases, contracts are for the benefit of the judgment and taste of the party, and are considered personal. (Siboni v. Kirkman, supra. Chit. on Cont. 634. Robson v. Dunn, 2 B. & Ad. 403.) And notwithstanding the good will of a trade may be the subject of value and price, and may be sold, bequeathed or become assets, (Tindall, C. J. in Hitchcock v. Coker, 6 Ad. & El. 438,) I am not certain that a covenant restricting professional practice, if unbroken before, continued in force after the death of the covenantee; for it is for his reasonable protection. But here that question does not arise ; for whatever claim for damages existed at his death, can be recovered by the representative. And the jury by their special verdict have found a breach in the lifetime of the intestate.
I have also come to the conclusion that here is sufficient consideration, and that the contract is not against public policy. The counsel for the defendant rely upon what was said by Mr. J. Bronson in Chappel v. Brockway, (21 Wend. 157,) and Ross v. Sadgbeer, (Id. 166.) In the first of those cases, the parties had been engaged in running packets, and the defendant sold out his interest in the concern fbr a pecuniary consideration;
In Hitchcock v. Coker, (supra,) in the exchequer chamber, reversing the decision of the king’s bench, it was held that the court would not look into the adequacy of the consideration, but only to see that some consideration appeared on the face of the declaration. That law has not been since disputed in England. (Archer v. Marsh, 6 Adol. & El. 959. Sainter v. Ferguson, 7 M. G. & S. 716.) Of course, there must be a consideration, as in all other contracts, or it would be nudum pactum and void.
Here a pecuniary consideration is. expressed, and mere nonpayment would not avoid the deed; and beside, there was a sale of the partnership effects. Without the second agreement, perhaps this sale does not appear; but the partnership and transfer of the effects of the firm are averred in the pleadings, and where that is done, those facts, it seems, can be proved. (Ross v. Sadgbeer, supra, Best, C. J. in Homer v. Ashford, 3 Bing. 322.) Certainly, the circumstances in which the parties were placed may be shown, to see whether the contract be reasonable.
In short, there is nothing appearing in or out of the contract, showing an inadequacy of consideration, or that the restraint was unreasonable. No one can say what the good will of the business, if that may be considered as included, was worth; and the sale of the property and the engagement not to practice, were parts of the same contract. And the extent of territory, and the length of time to which the restraint was limited, were not unreasonable, for the protection of the intestate. (Chappel v. Brockway, supra. Ross v. Sadgbeer, supra. Sainter v. Ferguson, supra. Hitchcock v. Coker, supra. Leighton v. Wales, 3 M. & W. 545. Homer v. Graves, 7 Bing. 743.
Several other objections to a recovery were taken, but none of them requires particular notice.
The rule of damages is the only remaining question. The defendant insists that the sum of $500, specified in the contract as liquidated damages, is a penalty. It is sometimes difficult to apply any general rule to these cases, or to determine when the parties intended to ascertain and fix the amount of damages. It is said, where the same sum is stipulated as recoverable for a breach of every article in the contract, 'however minute and unimportant, no words will make it a penalty. But the parties may, by their mutual agreement, settle the amount of damages, uncertain in their nature, in respect to the performance or omission of a particular specified act, at any sum upon which they shall agree. (1 Saund. Rep. 58, c. n. d. And see Dakin v. Williams, 17 Wend. 447; S. C. 22 Id. 201; Smith v. Smith, 4 Id. 468; Boys v. Ancell, 5 Bing. N. C. 390. Kemble v. Farren, 6 Bing. 141; Barton v. Glover, 1 Holt’s N. P. 43, and note to that case; Chit. on Cont. 759; Sedgwick on Dam. 449.) Under that rule, I think this is not a case of penalty. Indeed, in nearly all cases of this nature, where a certain sum has been agreed upon, as damages for the violation of an agreement restraining a party from the use and exercise of a trade or profession, the courts have considered it as liquidated damages. It has been so held in cases of physicians, surgeons, apothecaries, &c. (Rawlinson v. Clarke, 14 M. & W. 187. Hitchcock v. Coker, 6 Ad. & El. 438. Sainter v. Ferguson, 7 M. G. & S. 716. Smith v. Smith. 4 Wend. 468.) And of attorneys. (Galsworthy v. Scott, 1 Wel. Hurl. & Gord. 659.) And in other cases. (Green v. Price, 13 M. & W. 695. Duckworth v. Allison, 1 Id. 412. Pearson v. Williams, 24 Wend. 244; Dakin v. Williams, 17 Id. 447 ; S. C. 22 Id. 201. Reilly v. Jones, 1 Bing. 302. Barton v. Glover, 1 Holt’s N. P. 43. Crisdee v. Bolton, 3 C. & P. 240. Sedgwick on Dam. 435, et seq. Noble v. Bates, 7 Cowen, 307.)
If the defendant had practiced at the request of the intestate,
Hand, Justice.]
There must be judgment for the plaintiff.