Beatty v. Coble

• Decision Date: 18 October 1895
• Docket Number: 17,458
• Citation: 41 N.E. 590,142 Ind. 329
• Parties: Beatty v. Coble
• Court: Indiana Supreme Court

41 N.E. 590

142 Ind. 329

Beatty v. Coble

No. 17,458

Supreme Court of Indiana

October 18, 1895

From the Owen Circuit Court.

The judgment is reversed, with instructions to sustain the demurrer to the second paragraph of the answer.

I. H Fowler and T. G. Spangler, for appellant.

W Hickam, for appellee.

McCabe J. Jordan, J., took no part in this decision.

OPINION

McCabe, J.

The appellant and appellee are practicing physicians and surgeons.

The appellant sued the appellee to enjoin him from a violation of the following contract.

"Spencer Ind., November 2, 1891.

"Whereas, I am contemplating removing from Spencer; and, whereas, William H. Beatty, a practicing physician of Morgan county, is desirous of locating in Spencer, Indiana; now, therefore, in consideration of the purchase of my property by said William H. Beatty, I hereby agree that within a reasonable time, and as soon as I can arrange my business and conveniently leave my said field of practice, I will retire from the practice of medicine and surgery at Spencer, Ind.

"Jacob Coble."

There was a demurrer for want of sufficient facts overruled to the second paragraph of the answer. A trial of the issues formed resulted in a finding and judgment for the defendant, over appellant's motion for a new trial.

Error is assigned on the action of the court in overruling said demurrer, and in overruling the motion for a new trial.

The sufficiency of the complaint is called in question by the appellee, as he may do in his defense of the ruling on the demurrer to the second paragraph of the answer, as a bad answer is good enough for a bad complaint. Appellee also questions the sufficiency of the complaint by assigning for cross error that the circuit court erred in overruling a demurrer thereto, for want of sufficient facts.

The material facts alleged in the complaint are that both parties were practicing physicians and surgeons, the defendant in Spencer, Indiana, and the plaintiff in Morgan county, Indiana; and in consideration that plaintiff would purchase of said defendant his residence in Spencer, in Owen county, Indiana, for the sum of $ 1,500, said defendant agreed with plaintiff that he would leave his field of practice, which was co-extensive with said county, and retire therefrom and leave the same to the plaintiff, making the written contract, above set out, an exhibit and a part of the complaint; that, in pursuance of said agreement, he did purchase of said defendant said property for $ 1,500, and paid said defendant said sum; that said contract was entered into and said purchase made with the design and intention of plaintiff engaging in the practice of his profession at said town of Spencer, and in the former field of practice of said defendant, and without having the competition of said defendant therein; that defendant did, within a reasonable time thereafter, to-wit: August 15, 1892, retire from his field of practice at said town of Spencer, and did remove from said town and county to a distant part of the State. That plaintiff has ever since been engaged in the practice of his profession, and is now so engaged in the former field of practice of said defendant, but that defendant, wholly disregarding his said contract and agreement with said plaintiff, and in violation thereof, did on February 1, 1894, remove back to the town of Spencer, and opened an office, and has ever since been engaged in the practice of his profession at said town of Spencer, and in his former field of practice; that such violation of said contract is likely to, and will, result in great and irreparable damage to plaintiff in his future practice, the defendant being wholly insolvent; that the plaintiff has duly performed all the conditions of said contract. Prayer for an injunction.

The objection urged to the complaint is that the contract on which it is founded contains no express provision that the appellee shall not afterwards resume his practice, as formerly.

Appellee's counsel cite us to many authorities in support of this objection, the substance of all of which is summed up in one of them, namely: High on Injunctions, section 1169. It is there said: "Some conflict of authority exists upon the question whether, in the absence of an express agreement against resuming business in a given locality upon the sale of a business with its good will, equity should interfere by injunction to prevent defendant from so resuming. The better doctrine, however, is that to warrant a court of equity in interfering by injunction in such cases, there must be an actual contract, and the court will not imply a covenant on the part of one who sells the good will of a trade or business not to carry on the same trade or business in that locality. It follows, therefore, that where one has sold the good will of his trade without any express covenant, preventing him from resuming the trade in that vicinity, he will not be enjoined from resuming it."

It will be found that this principle is the outgrowth of sales of stock in trade in an established house or place of business, with the good will of customers, in the habit of doing business at that place.

In such a case the sale of the stock in trade and entire business, with the good will attached, puts an end to the business of the seller, at least for the time being, without any other agreement or stipulation than the transfer of the property, both tangible and intangible.

It had often been contended that such a sale carried with it an implied agreement that the seller would not resume the same business, or again engage therein, in that locality, and thereby take away from the purchaser that which he had sold to him, the good will of the habitual customers of such business.

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