Beard v. Dennis
| Citation | 6 Ind. 160 |
| Parties | Beard and Another v. Dennis |
| Decision Date | 29 May 1855 |
| Court | Indiana Supreme Court |
From the Wayne Court of Common Pleas.
The judgment is affirmed with costs.
J. B Julian and W. P. Benton, for appellants.
W. A Bickle and O. P. Morton, for appellee.
Complaint in the Wayne Common Pleas by Dennis against Beard and Sinex, asking an injunction. Injunction granted. Appeal to this Court.
The case may be shortly stated as follows:
Dennis, Mumford and Hooker, partners, were largely engaged in the city of Richmond, Indiana, in the sale of agricultural implements. Beard and Sinex were in the same trade, in the same place. They sold out their stock on hand to Dennis & Co. and agreed not to resume the same business in the city of Richmond, for the consideration, in round numbers, of 350 dollars. This agreement was in writing. The consideration was paid. Afterwards, Dennis bought out Mumford and Hooker, and carried on the business himself. Beard and Sinex took in an additional partner by the name of Dunn, and resumed their trade in agricultural implements. Dennis filed this complaint for the purpose of having them perpetually enjoined from prosecuting that trade in the city of Richmond, and nothing more. He did not seek an account and compensation.
The appellants object that the Court of Common Pleas had not jurisdiction of the cause. It is expressly conferred by statute. 2 R. S., p. 19, s. 21, and p. 59, s. 136.
They object that it is not Beard and Sinex, but Beard, Sinex and Dunn, who are carrying on the business, and hence, that there is no violation of the agreement to discontinue trade made by Beard and Sinex.
It is too plain for argument, that the latter persons can not escape the effect of this contract, if it is otherwise valid, by merely taking in an additional, perhaps nominal, partner.
They also object that Dennis can not maintain this proceeding in his own name, but must, if at all, prosecute in the name of Dennis, Mumford and Hooker.
As the complaint is simply to obtain an injunction, we think Dennis can maintain it in his name alone. The injunction is to operate for his benefit--he seems to be alone interested in its existence. But were he not, it is, when granted on his application, just as serviceable to Mumford and Hooker, as though obtained on the joint application of all three of the parties, and no more detrimental to the appellants. Had the complaint sought to obtain compensation or damages, as the legal interest in the contract made the foundation of the proceeding is in Dennis, Mumford and Hooker, it would probably have been necessary, even in this equitable proceeding, to have made them all parties, that it might bar any other suit by them for that purpose.
The remaining inquiry is, Can the remedy adopted be had upon the contract in question? Anciently the common law strongly discountenanced all contracts in restraint of trade. In one of the earliest cases of which we have an account, (Year Book, 2 Hen. 5,) where a dyer was bound not to exercise his craft for two years, Hull, J., not only held the bond void as against the common law, but added, "by God, if the plaintiff were here, he should go to prison till he had paid a fine to the king." Claggett v. Bachelor, Owen 143.--Cro. Eliz. 872. But views as to policy have undergone a change upon this subject. In 1711, occurred the case of Mitchel v. Reynolds, regarded as the leading authority in this branch of the law. It is reported in 1 P. Williams 181, and given in the first volume of the American edition of Smith's Leading Cases, at side-page 172. Judge Parker delivered an elaborate opinion, collecting and classifying the previous cases bearing upon the subject, and coming to the conclusion, that a "promise to restrain one's self from trading in a particular place, if made upon a reasonable consideration, is good; secus, if it be on no reasonable consideration, or to restrain a man from trading at all." Under this decision it was regarded, till the case of Hitchcock v. Coker, cited below, as a question for the Court, in every instance, to determine whether the consideration for the promise was reasonable or adequate; but the law of the case of Mitchel v. Reynolds has been subsequently modified, and, as Parke, B., states colloquially, in the argument by counsel in Green v. Price, 13 M. &. W. 695,
Latterly cases have multiplied upon this class of contracts, and the state of the law upon it, at present, may be briefly stated thus:
1. That a contract in general restraint of trade is void; and that no contract in restraint is implied from the mere sale of the good-will of a business.
2. That a contract restraining a party from trading within limits that may, by the Court, be adjudged reasonable and not injurious to the public, is valid. Avery v. Langford, 1 Kay 663, (Eng. V. Ch. 1854.) In Ward v. Byrne, 5 M. &. W. 548, the doctrine was carried to the extent of holding, where a person had agreed that he would not follow or be employed in the business of a coal merchant for, &c., that he not only could not set up the business for himself, but that he could not act in it as clerk for another, nor could he act as soliciting agent. Turner v. Evans, 2 E. & B. 512; (75 E. C. L. R.) See Miller v. Elliott, 1 Ind. 484; Taylor v. Owen, Taylor v. Moffatt, and Taylor v. Moffatt and Others, 2 Blackf., pages 301 to 308, inclusive.
3. That such contract must be, like contracts generally, upon a consideration; but that the parties may agree upon what it shall be, so that it is legal;...
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