127 Ala. 110 | Ala. | 1899
B. H. Williams is plaintiff, and The Tuscaloosa Ice Manufacturing Co. is defendant in this action. The complaint is as follows: “The plaintiff claims of the defendant the sum of three hundred and twenty-five dollars with interest from the 1st day of September, 1898, as damages for the breach of a contract or agreement entered into between the plaintiff and defendant on, to-wit, the 1st day of January, 1898, in substance as follows: This agreement made and entered into between the Tuscaloosa Ice Mfg. Co., of which Henry B. Gray is president, of the first part, and B. H. Williams, sole owner of an ice machine located near the Alabama Great Southern Railroad depot, at Tuscaloosa, Ala., of the second part, witnesseth • that the party of the first part for and in consideration of the covenants of the party of the second part hereinafter mentioned, agrees to pay the party of the second part the sum of eight hundred and seventy-five dollars ($875.00) in five equal payments of one hundred and seventy-five dollars each ($175.00), the first payment to be made this day, and the other four payments on the 1st day of June, 1898, 1899, 1900, 1901, respectively. In consideration of the promise of the foregoing payments the party of the second part hereby agrees not to run his ice machine as described above, nor suffer it to be run for the term of five years at Tuscaloosa, Ala., unless the party of the second part shall make a sale of the same to be run at Tuscaloosa, Ala., in which event he releases the party of the first part ■from making all subsequent payments to him; and also agrees to refund on any payment made by [to] Mm during the year such sale is made such a part of said payment as the remainder of that year bears to the entire year. It is further agreed that if the said party of the second paid shall sell his ice plant between January 1st and June 1st of any year he shall be entitled to his proportional payment for that year.' It is further
To this complaint the defendant interposed the following plea: “At the time said contract was entered
The argument in support of the contract is largely based upon the considerations that the restraint it imposes is limited both as to time and to territory — to five years at the most and to the town of Tuscaloosa and its vicinity, and many cases have been determined upon these considerations alone. But they were so determined, or at least at the present day they could be so determined, only because the contracts involved in them were unobjectionable upon other grounds. As the prin
One of these considerations, that resting on the nature of the transaction in which the covenant not to engage in a particular business is made, is this: Leaving to one side and out of view those cases in which property is sold and as part of the consideration the vendee agrees not to employ it in a business being carried on by the vendor, or within the territory covered bv the vendor’s business, and that other class of cases in which
But this contract is clearly bad upon the other consideration adverted to above: It tends to injure the public by stifling competition and creating a monopoly. Its-manifest purposes even upon its face, and certainly when taken-in connection with the facts averred in the plea, was to secure to the covenantee a- monopoly in the production and sale of. ice in the town of Tuscaloosa and vicinity, and such is its operation and effect. Indeed, on the allegations of the plea it was even worse than this for one of its results was to reduce the available supply of ice bélow the needs of the locality affected by it. It thus operated not only to put it in the power of the covenantee to arbitrarily fix prices, but directly and necessarily to create a partial ice famine upon which the defendant company could batten and fatten at its own sweet will. But aside from this, the monopoly itself, the putting in the power of the covenantee to control the production and to fix its own prices whatever the production is quite sufficient for the titter con
It follows that in our opinion the court below erred in sustaining the demurrer to defendant’s plea. The judgment of the Law and Equity Court will be reversed, and a judgment will, be here entered overruling said demurrer. The cause, will he remanded.
Reversed, rendered in part, and remanded.