51 Colo. 311 | Colo. | 1911
delivered the opinion of the court:
Simultaneously with the sale, and as a part of the transaction, the sellers agreed in writing, signed in their individual names, not to engage in the drug business for a term of five years “either as clerks or proprietors within 5 blocks of either store, without paying to Woodward the sum of $1,000.” In April, 1907, before the expiration of the five year limit, W. H. Smith engaged, as proprietor, in the general drug business within the restricted district. Thereupon Woodward sued him1 and recovered judgment for the sum designated in the agreement. From that judgment Smith prosecutes this appeal.
Appellant contends, that the agreement not to engage in business for the designated time within the restricted district, did not include the acts of the covenantors severally, but only jointly; and that the allegation and proof that W. H. Smith engaged in the drug business within the restricted district, constitutes no proof of a breach of the contract.
It is elementary that, if parties contract jointly only, there must be a joint liability enforcible against all, in order that there may be a several liability enforceable against any. Bennett v. Morse, 6 Colo. App. 122. However, it is equally elementary that no particular language or phraseology is necessary to make a con
Applying these rules of construction to. the covenant under consideration, we are of the opinion that it was the intent of the parties thereto to restrict P. L. Steadman and W. H. Smith from engaging in the drug business in any capacity, whereby they jointly or individually might draw away from appellee the trade and good will of the very business they had sold to him. Steadman and Smith had, within the restricted district, been engaged in the drug'business for many years, and, by reason thereof, it is proper to presume, had an extensive acquaintance therein. This would necessarily give each of them a decided advantage in competition with the appellee, and would likewise give anv employer of either a like advantage. Realizing this, the parties evidently designed to restrict all competition by the covenantors, jointly and severally, with the appellee in the drug business in the particular district. This is evident from the words, “We agree not to go in the drug business either as clerks or proprietors” found in the contract. The duties of a clerkship, are necessarily several, and, in that respect, at lehst, the contract expressly shows a several obligation. Under these circumstances, it is not reasonable to believe that the intent of the parties was to bind Steadman and Smith jointly, not to engage in the drug business within the
The following authorities are somewhat similar in facts, clearly analogous in principle, and support the rules we have here applied. — Hubbard v. Miller et al., 27 Mich. 15; U. S. C. Co. v. Wm. Wall’s Sons R. Co., 35 N. Y. Supp. 978.
The judgment is, therefore, affirmed.
Judgment affirmed.