This suit in equity is to restrain the defendants from soliciting or persuading the plaintiff’s customers to discontinue the purchase of milk or milk products from the plaintiff and to purchase the same from the defendants, in violation of the terms of the contract between the plaintiff and the Milk Wagon Drivers Union Local No. 380, of which the defendant William J. O’Connell is a member. A decree was entered enjoining him from soliсiting or selling dairy products to customers of the plaintiff who had been served by him while he was in the plaintiff’s employ, and enjoining all the dеfendants from continuing to sell such products to customers who live or did business in Brookline. The plaintiff appealed from the final decree. The defendants appealed from the interlocutory and final decrees. The defendants have not prosecuted their appeals and have been defaulted.
Article ten of the agreement between the plaintiff and the union рrovided: “Each man employed under this agreement covenants and agrees with the employer that should such man’s employmеnt cease for any reason during the term of this agreement and for ninety (90) days thereafter, he will not, by himself, by agents, or as the servant or agent of another, interfere with the business of said employer or sell milk, cream, or other dairy products to any customer of said employer for a period of ninety (90) days from the cessation of said employment.”
The master found that the agreement was accepted at a meeting of the union and duly executed by its officers. The agreement covered the wage scale of the plaintiff’s employees from April 1, 1930, to March 31, 1931. William J. O’Connell had been employed by the plaintiff as a driver of a milk wagon for ten years prior to January 18, 1931, when he left the plaintiff’s employ. He was during his employment and at the time of the hearings befоre the master a member of the union. In February, 1931, the defendant Marie B.
The trial judge found that the plaintiff’s business of selling milk and other dairy products extended through the eаstern part of the Commonwealth in the territory lying between Cape Ann and Cape Cod, including Boston and many cities and towns in the Commonwealth; that it also does business in Providence and Pawtucket in the State of Rhode Island. He ruled that, William J. O’Connell being a member of thе union, the terms of the agreement of April 1, 1930, under which he worked, including article ten, entered into and became a part of the employment; that the restrictions in article ten were too broad, covering an extensive territory, and gave the plaintiff mоre protection against possible damage than was reasonable.
The only appeal before us is that of the plaintiff. It contends that the decree was wrong because the agreement, confined as it was to a ninety-day period, should nоt be construed as unreasonably broad respecting territory. In our opinion the trial judge was right. By article ten William J. O’Connell was prevented from interfering with the business of the plaintiff in any place its business was carried on, and debarred him from selling milk to any of its customers if thеy resided or did business within that area. Such a wide covenant in restraint of trade is broader than a reasonable protection of the plaintiff’s business required. It was an “interference with individual liberty,” was against public policy, and will not be enforced so as
The fact that the time limitation was ninety days does not change this rule. While the period runs the restriction is unreasonable. The plaintiff did not require it for the proper safeguarding of its business and it unjustly restrained the defendants from following their occupation. The time restriction, while reasonable in itself, does not save the territorial limitation from being unreasonable. The evils resulting from a contract as broad as the one under consideration, even during a period of ninety days, are against public policy. See Alger v. Thacher,
The judge was right in limiting the area and in enjoining all the defendants from selling dairy products to the customers of the plaintiff in Brookline, and in addition in restricting William J. O’Connell from soliciting business or selling dairy products to any customers of the plaintiff whom he had served while in the plaintiff’s employ. A сontract in restraint of trade in which the territory is unreasonably extensive may be divisible as to space and enforced in equity within а reasonable area. Edgecomb v. Edmonston,
Following Taylor v. Blanchard,
The master found that the defendants delivered milk to former customers of the plaintiff who resided in Brookline. The damages to the plaintiff resulting from this amounted to $572. In addition it appeared that milk was sold to a former customer of the plaintiff who did business in Cambridge; that if the Cambridge customer was included, the totаl damages were $892. It does not clearly appear that the Cambridge customer had been served by William J. O’Connell during his employmеnt by the plaintiff. The defendants were enjoined from selling dairy products to customers of the plaintiff in Brookline, and the defendant Williаm J. O’Connell, while restrained from delivering dairy products to any one of the plaintiff’s customers whom he served, should not, on this record, be called upon to pay damages resulting from a loss of the Cambridge customer.
It follows that the decree should be modified by allowing the plaintiff damages in the amount of $572; as so modified, it is affirmed.
Ordered accordingly.