Cottington v. Swan

Citation107 N.W. 336,128 Wis. 321
PartiesCOTTINGTON v. SWAN.
Decision Date08 May 1906
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Chippewa County; A. J. Vinje, Judge.

Action by Robert Cottington against L. E. Swan. Judgment for defendant, and plaintiff appeals. Reversed.

The plaintiff alleges that on May 2, 1904, he and one C. B. Ackley purchased defendant's livery business, good will, and property, consisting of the usual equipment for conducting such a business, located in the village of Bloomer in this state; that they paid for such business, property, and good will the sum of $800; and that defendant duly transferred it to them upon payment of the specified consideration. The defendant, as a condition of such sale and transfer, covenanted and agreed as follows: “And I do further covenant and agree to and with the parties of the second part and their heirs, executors, and administrators that I will not engage in the livery business, either directly or indirectly, or be or become in any manner employed or connected with such buisness in the village of Bloomer in the county of Chippewa and state of Wisconsin so long as the said parties of the second part or either of them or their heirs, executors or administrators shall engage in such livery business within said village.” The plaintiff has acquired from C. B. Ackley all rights, interest, and causes of action arising out of such contract, and since such transfer has been and is now engaged in conducting the livery business so purchased from defendant. The complaint further alleges: “That the said defendant in violation of said agreement and shortly after the making of the same and prior to the time of the commencement of this action returned to and commenced conducting the livery business at said village of Bloomer and ______ has been engaged and is still engaged and continues in the business of letting horses and rigs for hire in said village.” The complaint demands as relief that defendant be restrained from conducting a livery business in violation of his contract and for the recovery of $1,000 damages, claimed to have been sustained before the commencement of this action on account of defendant's violation of the contract. The defendant demurred to the complaint on the ground that it appears upon the face of the complaint that the same does not state facts sufficient to constitute a cause of action. The court made an order sustaining the demurrer and plaintiff duly filed an exception. This is an appeal from such order.Henry Lebeis, Jr. (W. H. Stafford, of counsel), for appellant.

W. M. Bowe, for respondent.

SIEBECKER, J. (after stating the facts).

The only ground of objection urged to the complaint is that the contract upon which recovery is claimed by the plaintiff is in restraint of trade and the courts therefore will not enforce it nor consider the question of injury resulting from its breach. Contracts in restraint of trade have been repeatedly considered by this court and held to be void as against public policy, “unless limited, as to time, space, and extent of trade, to what is reasonable under the circum stances of the case, because they tend to deprive the public of the services of the persons in those capacities in which they are most useful, and also tend to expose the publicto the evils of monopoly.” Tecktonius v. Scott, 110 Wis. 441, 86 N. W. 672. Condemnation of contracts of this nature has been quite universal by the courts, upon the ground that no person should be permitted to so contract as to preclude himself from following a lawful occupation for the benefit of himself and of those dependent upon him, or to deprive the public of his industry. The vital question in the consideration of every such question is whether the restraint imposed is reasonable under the circumstances with reference to “the situation, business, and objects of the parties,” and if “the restraint contracted for appears to have been for a just and honest purpose, for the protection of the legitimate interests of the party in whose favor it is imposed, reasonable as between...

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20 cases
  • Pulp Wood Co. v. Green Bay Paper & Fiber Co.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 17, 1914
    ...Oil and Tobacco Cases, as will be seen from an examination of the following cases decided since the law was enacted: Cottington v. Swan, 128 Wis. 321, 107 N. W. 336;My Laundry Co. v. Schmeling, 129 Wis. 597, 109 N. W. 540;Kradwell v. Thiesen, 131 Wis. 97, 111 N. W. 233;Burton v. Douglass, 1......
  • Solowicz v. FORWARD GENEVA NAT., LLC, 2008AP10.
    • United States
    • United States State Supreme Court of Wisconsin
    • March 24, 2010
    ...imposed, reasonable as between them and not specially injurious to the public." Id. at 570, 183 N.W. 984 (quoting Cottington v. Swan, 128 Wis. 321, 323, 107 N.W. 336 (1906) and cases there cited). Solowicz is correct in pointing out that the Huntley court determined whether the restrictive ......
  • Love v. Miami Laundry Co.
    • United States
    • United States State Supreme Court of Florida
    • May 5, 1934
    ...... to, no question as to the validity of the contract would. arise under the decisions of our own state. Cottington v. Swan, 128 Wis. 321, 107 N.W. 336; My Laundry Co. v. Schmeling, 129 Wis. 597, and cases cited on page 606,. 109 N.W. 540. It meets all the ......
  • Fullerton Lumber Co. v. Torborg
    • United States
    • United States State Supreme Court of Wisconsin
    • June 1, 1955
    ...v. Thiesen, 1907, 131 Wis. 97, 111 N.W. 233; My Laundry Co. v. Schmeling, 1906, 129 Wis. 597, 109 N.W. 540, and Cottington v. Swan, 1906, 128 Wis. 321, 107 N.W. 336, where this court has upheld restrictive covenants, are not very helpful in this instance because they grow out of the sale of......
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