Mapes v. Metcalf

Decision Date24 December 1901
Citation88 N.W. 713,10 N.D. 601
CourtNorth Dakota Supreme Court

Appeal from District Court, Nelson County, Fisk, J.

Action by L. E. Mapes against R. L. Metcalf and others. Judgments for defendants, and plaintiff appeals. Reversed.

Reversed and remanded.

Templeton & Rex, for appellant.

A contract in restraint of trade is valid if it be limited either as to place or time, such limitation being reasonable. Tode v. Gross, 127 N.Y. 480; Diamond Watch Co v. Roeber, 106 N.Y. 473; Althen v. Vreeland, 36 A. 479; Fowle v. Parke, 133 U.S. 88, 33 L.Ed. 67; Anchor Electric Co. v. Hawkes, 171 Mass. 101; Oregon Steam Nav. Co. v. Windsor, 87 U.S. 84, 22 L.Ed. 315; Morse & Co. v. Morse, 103 Mass. 73. The contract in suit is not void as tending to create a monopoly. Diamond Watch Co. v. Roeber, 106 N.Y. 473, 483; Leslie v. Lorillard, 110 N.Y. 519, 18 N.E. 366, 1 L R. A. 456; National Ben. Co. v. Union Hospital Co., 45 Minn. 272, 47 N.W. 806; Perkins v. Lyman, 8 Mass 522; Oakes v. Cattaraugus Water Co., 143 N.Y. 430; Matthews v. Associated Press, 136 N.Y. 333; Wood v. Whitehead Bros., 165 N.Y. 545. The case at bar in this aspect is similar to cases where physicians or other professional men have sold out their practice with a covenant not to re-engage in the same profession; such agreements have been uniformly held good. Smalley v. Greene, 52 Ia. 241, 35 Am. Rep. 267, 3 N.W. 78; Haldzman v. Simonton, 55 Ia. 144, 7 N.W. 493; Cook v. Johnson, 47 Conn. 175, 36 Am. Rep. 64; Bunn v. Guy, 4 East, 190; Holbrook v. Waters, 9 How. Prac. 335; Stafford v. Shortreed, 17 N.W. 756; Dwight v. Hamilton, 113 Mass. 175; Martin v. Murphy, 129 Ind. 464. The case at bar must be distinguished from cases of combinations, trusts, and pools, to limit production and enhance prices. The distinction between cases of this class and of the class of the case at bar is indicated in Cummings v. Union Blue Stone Co., 164 N.Y. 404; Dolph v. Troy Laundry Machine Co., 28 F. 553. It was contended in the lower court that Mapes sold nothing tangible, therefore the contract was void. Such contention is untenable. Leslie v. Lorillard, 110 N.Y. 519; National Ben. Co. v. Union Hospital Co., 45 Minn. 272; Franz v. Bieler, 58 P. 466, 56 P. 249, 126 Cal. 176; Wood v. Whitehead Bros., 165 N.Y. 545. The statutes of this state, § § 3926, 3927 and 3486, Rev. Codes, are not against appellant's position. Respondent's contention, that there was no breach of the obligations of the contract to warrant the bringing of suit until defendants had refused to arbitrate is not well founded. § 3925, Rev. Codes. By denying the validity of, and all liability under, the contract the defendants waived any right to arbitration. 2 Enc. L. 581, note 2; Bailey v. Aetna Ins. Co., 77 Wis. 336, 46 N.W. 440; Kahn v. Ins. Co., 34 P. 1059; Menz v. Ins Co., 79 Pa. 478, 21 Am. Rep. 80. The question is analogous to that arising in cases of replevin and conversion, where it is held that a failure to make demand before suit is cured by defendant's assertion of ownership and right to possession in his answer. Guthrie v. Olsen, 44 Minn. 404; Kellogg v. Olson, 34 Minn. 103; Daggett v. Gray, 42 P. 568. Section 3983, Rev. Codes, authorizes the sale of the good will of a business. Mapes bound himself not to draw off any of the customers, and a sale of the good will is necessarily implied thereby. Lane v. Smythe, 19 A. 199; Boon v. Moss, 70 N.Y. 465; Mantzfield v. Ry. Co., 102 N.Y. 205.

Bosard & Bosard and H. D. Fruit, for defendants and respondents.

By the contract of the parties any disagreement regarding the interpretation thereof should have been settled by arbitration. Plaintiff did not offer to arbitrate or select an arbitrator as required by the contract and until defendants refused to arbitrate there was no breach of the contract sufficient to warrant the bringing of suit. Westhaven v. Ins. Co., 84 N.W. 717; Hembean v. Great Camp of Knights, 49 L. R. A. 592. The contract sued on by plaintiff is in restraint of trade, and in the nature of a contract creating a monopoly, and is void. § § 3926, 3927, 3928, Rev. Codes; Clark v. Needham, 83 N.W. 1027; U. S. v. E. C. Knight Co., 163 U.S. 16; Wright v. Ryder, 36 Cal. 342; McMullen v. Hoffman, 174 U.S. 639; Western Wooden Ware Ass'n v. Starkey, 74 N.W. 604; Wintonburg v. Molyneaux, 83 N.W. 842; U. S. v. Addyston Pipe & Steel Co., 29 C. C. A. 141, 46 L. R. A. 122; Richardson v. Buhl, 6 L. R. A. 457; Peo. v. Milk Exchange, 29 L. R. A. 437; Morris Run Coal Co. v. Barclay, 8 Am. Rep. 159; Chapman v. Brown, 48 N.W. 1074; Carroll v. Giles, 4 L. R. A. 154; State v. Nebraska Distilling Co., 43 N.W. 155; McCutcheon v. Merz Co., 31 L. R. A. 415; Standard Oil Co., v. Adouse, 15 L. R. A. 598. The covenants of the defendant depend on the covenants of the plaintiff, and in order for the plaintiff to recover he must show a full compliance with the contract on his part. Belt v. Stetson, 26 Minn. 481. It will not suffice that the thing the plaintiff has done is as good as he agreed, it must be the particular thing. Bixbee v. Wilkinson, 25 Minn. 481; Dauchey v. Drake, 85 N.Y. 407. A party contracting to do several things for a certain consideration, when the value of each different thing is not stated, is bound to perform, or tender performance, of all the covenants which enter into the contract before suing to recover, and any material deviation from his contract will defeat a recovery. McMillan v. Vanderlip, 12 Johns. 165; Jennings v. Camp, 13 Johns. 95; Husted v. Craig, 36 N.Y. 221; Brown v. Webber, 38 N.Y. 187; Catlin v. Tobias, 26 N.Y. 218; Borrowman v. Drayton, 19 Moake's Eng. Rep. 341. Plaintiff violated substantial provisions of his contract, thereby depriving defendant of the benefits thereof. Defendant was then justified in abandoning further performance. Brussie v. Peck Bros. & Co., 54 F. 820; Lake Shore Ry. Co. v. Richards, 38 N.E. 773; Bond v. Carpenter, 8 A. 539.



The plaintiff brings this action upon a covenant contained in a written contract executed by the defendants R. L. Metcalf and Meldonetta Metcalf in favor of one E. Mapes, and duly assigned by said Mapes to the plaintiff prior to the commencement of this action. Plaintiff demands a money judgment, and an accounting by the defendants for moneys alleged to have been received by them under said contract. Thomas J. Baird and Mary A. Rayburn are sureties on an undertaking given to secure said contract, and are made defendants herein. The defendants answered jointly, admitting the execution of the contract and bond in suit, but denying all liability thereunder, and denying that Mapes had complied with his covenants in said contract. The trial was to the court without a jury. The issues of fact as to the amount of plaintiff's damages were not tried, and no accounting was had. Prior to the trial of the case in the district court, upon stipulation of counsel for the respective parties an order was entered of record by the presiding judge to the effect that the "issue as to damages plaintiff may be entitled to recover herein be, and the same hereby is, reserved for trial and determination at such future time as may be fixed by the court, in the event that, after the trial and determination of the other issues in this case it shall be necessary to try such issue." Evidence was offered upon all other issues than that reserved, and, from the facts established by the evidence so offered, the court found, as a conclusion of law, that the plaintiff was not entitled to recover upon said contract. Judgment was ordered and entered dismissing the action, and awarding costs to the defendants. Both parties have appealed from the judgment. Plaintiff's appeal was perfected on July 25, 1901, and is taken upon the judgment roll proper. Upon this appeal error is predicated solely upon the decision of the trial court. The particular assignment relied upon is the conclusion of the trial court that the contract in suit is void and that no action can be maintained thereon.

After the plaintiff's appeal was perfected the defendants took a cross appeal from the judgment, with a view to securing the review of the entire case in this court upon the evidence. To this end, they caused to be settled and brought into the record a statement of the case, embracing all the evidence offered and proceedings had at the trial, including therein a specification "that they desire a retrial and review of the entire case in the supreme court." The structure and contents of the statement are in strict conformity to the requirements of § 5630, Rev. Codes 1899, under which the case was tried, which section also prescribes the conditions upon which a retrial may be had in this court. No defect in the form or contents of the statement is shown or claimed to exist. Nevertheless, we are agreed, for reasons which will hereafter be stated, that this court is without lawful authority to accord to defendants the review and retrial which they seek. The only authority possessed by this court to retry cases is conferred by § 5630, Rev. Codes 1899, and the provisions of said section operate as a limitation upon our authority to do so. That section, in unmistakable language, as repeatedly construed by this court, authorizes and requires a final disposition of cases appealed thereunder at our hands. That the express purpose of this statute is to secure a speedy and final determination by this court of actions appealed thereunder does not admit of doubt. The original act (chapter 82, Laws of 1893) required the supreme court to "render final judgment according to the justice of the case." The same requirement as to rendering final judgment was embodied in the amended act (section 5630, Rev. Codes 1895). The statute now in force,...

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