Brewer & Co. v. Lamar

• Decision Date: 30 September 1882
• Citation: 69 Ga. 656
• Court: Georgia Supreme Court
• Parties: Brewer & Company. vs. Lamar, Rankin & Lamar.

69 Ga. 656

Brewer & Company. vs. Lamar, Rankin & Lamar.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1882.

Contracts. Public Policy. Restraint of Trade. Equity. Injunction. Before Judge simmons. Bibb County. At Chambers. March 25, 1882.

Reported in the decision.

G. T. & C. L. Bartlett, for plaintiffs in error.

Samuel H. jemison, for defendants.

Speer, Justice.

On the 8th of December, 1880, T. E. Brewer, the plaintiff in error, entered into the following agreement with Lamar, Rankin & Lamar, defendants:

" Augusta, Ga., Dec. 8th, 1880.

"For and in consideration of two hundred and seventy-five dollars ($275), paid to me this day, by Lamar, Rankin & Lamar, of Macon, Georgia, through George Sibley, Esq., of Augusta, Georgia, I hereby surrender my entire interest, right and title to the preparation known as ' Brewer's Lung Restorer, ' and agree never to use or permit my name to be used on any preparation which could be recommended and sold for the same purposes as Brewer's Lung Restorer is used and sold for; further agree to keep secret, from balance of the world, the recipe of the same. I do further agree to surrender my trade mark to the said Lamar, Rankin & Lamar, and recommend that the commissioner of patents, or the proper parties, transfer the right to the trade mark to Lamar, Rankin & Lamar.

To sum up the whole thing in a few words, this agreement is intended to convey unto Lamar, Rankin & Lamar all my right, title and interest in Brewer's Lung Restorer, and to give them the exclusive right to claim, sell and manufacture the same, either under the name of Brewer's Lung Restorer, or any other name they wish to give it; that I will never, hereafter, state or convey the idea that I still have an interest in said medicine. For the faithful performance of this contract I hereby pledge my honor.

[Signed] T. E. Brewer."

Witness:

a. h. vonderleith,

Notary Public, Richmond County.

P. B. Tobin.

To enforce an observance of this agreement, and to enjoin the violation of its terms by T. E. Brewer, the complainants below filed their bill in chancery, before the judge of the Macon circuit, against the defendant, Brewer; andafter setting forth said agreement and alleging the insolvency of the defendant, charged: " That said Brewer, in violation of his solemn agreement, and covenants, and in fraud of their rights, conspiring with persons to them unknown, under the name of T. E. Brewer & Co., is making and selling a medicine, advertised and recommended for the cure of the identical diseases and affections for which said Brewer\'s Lung Restorer is recommended, under the name of \'Brewer\'s Sarsaparilla Syrup, \' as appears by a copy of an advertisement issued by said T. E. Brewer & Co., thereunto annexed, all of which is contrary to equity and good conscience, " etc.

The defendant below answered said bill, and among other matters, by way of defence and avoidance of said contract, avers that the same, so far as it agrees that defendant would not use or invent any preparation that could be recommended for the same purpose as the Lung Restorer, etc., is void, and cannot be enforced, because it is contrary to public policy that any such contract should have been made.

On the bill and answer and proof submitted, the chancellor granted the injunction as prayed for; to which order and judgment plaintiff in error excepted. The main and only question pressed on the argument before this court, and the one we are called upon to determine, is whether this contract is in general restraint of trade, and therefore void. Great research and investiga-tion have been bestowed upon this question by the counsel engaged, as is apparent from the arguments and briefs submitted on both sides. Numerous authorities, both English and American, have been produced and relied upon. But in construing statutes of our state, or provisions of the Code, we...