2 Blackf. 301 | Ind. | 1830
This was a suit in chancery. The complainant, Taylor, was a merchant in JVew-Harmony, and claimed the exclusive right to vend merchandise in that town for ten years. He complains in his bill, that he had been interrupted in the enjoyment of this exclusive privilege by the defendants, Owen, Rogers, and Moffatt; and prays an injunction. The defendants, in their answers, deny the existence of the right claimed by the complainant. The facts in the case, necessary to be noticed, arc as follows:—
Ozoen, one of the defendants, being the owner in fee-simple
The Circuit Court dismissed the bill.
The object of this bill is to obtain a perpetual injunction-against Moffatt, restraining him from the further vending of merchandise in Mew-Harmony. The claim to this injunction, is founded on the covenant of Ozuen, that the complainant should have, for ten years, the exclusive right to keep a store-in that town. The objection made by Moffatt to the granting of this injunction against him is,—that he has the lawful and-unrestricted possession, for a term of years, of the house and lot where he is engaged in trade; and that he has entered into no contract with any person not to vend merchandise there. This objection is supported by the facts in the case; and it is, in our opinion, sufficient to prevent the injunction prayed for.
The idea of the complainant, that the covenant in question was a conveyance to him, of the exclusive right of vending merchandise in Mew-Harmony, cannot be sustained. Such a right of the proprietor of real estate to carry on trade upon his
Whilst Ozuen had the rightful possession of the whole town, he had of course the right to a monopoly of the business. This monopoly he had it in his power to permit the complainant to enjoy, by not selling any' of the property to any other person, nor leasing any of it without inserting in the leases the necessary restrictions. In the case before us, however, Ozuen has thought proper to lease one of his houses and lots in the town to Rogers for three years, without restricting him as to the vending of merchandise; and Rogers, has under-let a part of the premises to Moffatt without any restriction. The consequence is, that Moffatt has the rightful possession of the part of the house he occupies; and, from the nature of'the estate, he has the right to carry on there any lawful business he chooses, which is- not prohibited by the original lease and which is not injurious to the premises. Ozuen himself, who is the owner of the reversion, cannot restrain him from the vending of merchandise there; much less can Taylor, the complainant, who has no pretence to any interest whatever in the property. If the covenant between Ozuen and Taylor, respecting the exclusive right referred to, be valid,—as to which we give no opinion,—Taylor's reme
The objection made to these proceedings on the ground of a suppression of depositions, and of a refusal to continue the cause in order to take other depositions, cannot be supported. The witnesses whose depositions were suppressed were directly interested; ánd, on the motion for a continuance, it is not shown that the depositions intended to be taken would be material in the cause.
The decree is affirmed with costs.