Pickett v. Green

• Decision Date: 06 November 1889
• Citation: 120 Ind. 584,22 N.E. 737
• Parties: Pickett v. Green et al.
• Court: Indiana Supreme Court

120 Ind. 584

22 N.E. 737

Pickett

v.Green et al.

Supreme Court of Indiana.

Nov. 6, 1889.

Appeal from circuit court, Noble county; A. A. Chapin, Judge.

Injunction by Thomas C. Green and William T. Green against Columbus M. Pickett. Judgment for plaintiffs, and defendant appeals.

L. W. Welker, Robert P. Bars, and R. Wes. McBride, for appellant. Peele & Taylor and L. H. Wright, for appellees.

Coffey, J.

It is averred in the complaint in this cause that on the 6th day of June, 1885, the appellant and the appellees entered into the following written agreement, viz.: “This agreement, made and entered into by and between Columbus M. Pickett, party of the first part, of the county of Noble and state of Indiana, and Thomas C. Green and William T. Green, of said state, parties of the second part, witnesseth that said party of the first part, in consideration of the agreements and covenants of the parties of the second part hereinafter set out, said first party hereby sells and conveys to said second parties the following personal property, to-wit: 1 table; one office chair, with book-rest; one reclining chair, with cane bottom and back; six common chairs; one prescription case; one book-case; one stove, with pipe; one side-lamp; one oil-can; one slate; and his good-will in the practice of medicine,-and further agrees not to locate for the practice of medicine within a radius of ten miles of said town of Albion for fifteen years from this date, nor to practice within said radius, but reserves the right to do some practice for two weeks from this date; for and in consideration of which said second parties hereby agree to this day give said first party their note for one hundred dollars, due in ten days from date, and within said date to pay the same to said first party or order. [Signed] Columbus H. Pickett, M. D. [Seal.] William T. Green, M. D. [Seal.] Thomas C. Green. [Seal.]” It is further averred in the complaint that at the time of execution of the above contract the appellees were desirous of entering into the practice of medicine at the town of Albion, named in said contract, and that said contract was made with that object in view; that they fully complied with the terms of said contract, and did enter upon the practice of medicine at said town, and have ever since, and now are, engaged in the practice of medicine and surgery at said place; that the appellant, in violation of said contract, has again located in said town of Albion, and has again engaged in the practice of medicine and surgery at said place, in competition with the appellees, to their damage. Prayer for an injunction.

The appellant answered, admitting the signing of the agreement set out in the complaint, but says that at the time, and before, said writing was signed by him, it was agreed by and between the parties then signing the same that the plaintiff William T. Green was to purchase of the defendant and his wife the following described real estate in Noble county, Ind., to-wit, (describing it,) and pay therefor the sum of $1,400 as soon as a certain action then pending in the Noble circuit court, in which John S. Lytle and David Lytle were plaintiffs, and this defendant and his wife were defendants, to set aside the deed of said property, and subject the same to a claim of said plaintiffs, which at that time prevented the defendant and his wife from making said conveyance, as the same was a cloud upon the title, was settled; it being agreed that, as soon as said cloud was removed, said plaintiff would purchase said property as above set out. That, at the time of signing the contract above set out, he signed and acknowledged a deed whereby he was to convey to said William T. Green said real estate, and left the same in the hands of his attorney, to be delivered when the purchase money was paid. That the said Lytle and Lytle dismissed their said suit, and agreed not to further prosecute the same, on the 30th day of June, 1885. That, on said day, defendant notified the plaintiff William T. Green that said suit had been so dismissed, and that he was ready to make said conveyance; but said plaintiff requested further time in which to raise the purchase money, which was granted. That, at the expiration of said time, plaintiff William T. Green failed and refused to comply with his part of said agreement. That, at the time of signing said agreement, the same was delivered to the said William T. Green for him to submit to his brother, the other plaintiff herein, for his approval and signature, but was not to be delivered, but returned to defendant's attorney, and not delivered until the said William T. Green purchased said real estate, and in all things complied with his agreement as hereinbefore set out. That the sale of said real estate for the sum of $1,400 was the consideration that moved this defendant to sign said writing set out in the complaint. That said sum of $100, named in said writing, was not the consideration for which this defendant agreed not to practice medicine for 15 years within 10 miles of the town of Albion, nor any part thereof, but was the consideration for said office furniture purchased by plaintiffs; and the purchase of said real estate for $1,400 was the sole and only consideration for said restraint of defendant's practice. That plaintiff William T. Green did not return said writing to defendant's attorney, as...