Parkhurst v. Brook

72 Vt. 355 | Vt. | 1900

Nowell, J.

The parties being separately engaged in buying and selling wood in North Troy and vicinity, the defendant sold his wood to the plaintiff, and agreed not to engage, nor be interested, “ in the wood business, that is to say, in buying, selling or furnishing wood * * * in said North Troy nor in the immediate surrounding vicinity,” so long as the plaintiff was engaged in that business there; and for a breach, to forfeit $500 as liquidated damages. The defendant then lived in North Troy, but some months after, moved onto a farm six miles away, and has lived there ever since. At one time while living there, he let a man in North Troy have two running cords of stove wood for cutting ice for him. At another time, he gave a tenant in one of his houses in North Troy, eight cords, instead of fixing up the house and making it warmer, and to keep the tenant from going out. These are the claimed breaches. But they are no breaches. The word “ business ” is not used in the contract to denote an isolated act or two of disposing of wood for the special convenience and interest of the defendant, but an aggregation of acts that may fairly constitute the carrying on of the “ wood business ” as defined in the contract. This is the meaning given to the word in the construction of contracts of insurance, and in determining whether the testimony shows a violation of agreements of the character of the one in suit. Thus, in Hoagland v. Segur, 38 N. J. L. 237, the defendant agreed to abandon and not engage in the business of banking; and it was held that the single act of taking deposits was no breach. So in Turner v. Evans, 2 El. & Bl. 512, the defendant agreed not to carry on the business of a wine merchant within certain limits. But he systematically solicited orders therein and filled them, though he had no place of business there; and it was held a breach, because he did it on system, the court saying that if he had done it only now and then, to oblige an old customer or the like, it would have been no breach, for it would not have been carrying on business. A solicitor does not “ carry. on business ” outside 'of the limits within which he is authorized to practice by his certificate, merely because of a single isolated transaction outside of those limits. In Re Horton, 45 L. T. 541.

The cases of Clark v. Crosby, 37 Vt. 188; Barry v. Harris, 49 Vt. 393; Stevens v. Pillsbury, 57 Vt. 205 and Borley v. McDonald, 69 Vt. 309 — relied upon by the plaintiff — are not opposed to this view. Clark v. Crosby does not touch the' question. The others are properly distinguished hy the defendant’s counsel when they say that “ in each, it is not the particular act that is held to constitute the breach, but the fact that the defendant had entered upon a business, a systematic course of action, of which the specific acts were the natural outcome.”

There being no evidence to sustain the verdict,

Judgment reversed, verdict set aside, and cause remanded.