Presbury v. Fisher

• Decision Date: 31 March 1853
• Citation: 18 Mo. 50
• Parties: PRESBURY, Plaintiff in Error, v. FISHER & BENNETT, Defendants in Error.
• Court: Missouri Supreme Court

18 Mo. 50

PRESBURY, Plaintiff in Error,

v.FISHER & BENNETT, Defendants in Error.

Supreme Court of Missouri.

March Term, 1853.

1. A bond given by one party to another for a valuable consideration, conditioned that a third party shall not engage in a particular business, is not void, as being in restraint of trade. It seems, that the doctrine of the common law that contracts in restraint of trade are void, is regarded with less favor than formerly, the reasons in which it had its origin having, in a measure, ceased.

2. A bond may be void in part and valid in part, if the valid and void conditions are capable of being separated. Thus, where one of the conditions in a bond is valid, and the other void and the whole penalty is forfeited by a breach of either, the obligee may recover for a breach of the valid condition.

Error to St. Louis Court of Common Pleas.

Glover & Campbell and Richardson, for plaintiff in error.

It is not denied that a contract in restraint of trade generally was void at common law. This doctrine, however, is not regarded so important as formerly. (21 Wend. 158.) But the contract sued on in this case is not in restraint of trade at all. There are two conditions in the bond: 1. That Fisher & Bennett should not publish. 2. That Clark should not publish. The latter is the one sued upon. This is certainly not a restraint upon trade. Clark was left free to act as he saw fit. It is a mere covenant of indemnity by Fisher & Bennett for a valuable consideration, gainst the acts of Clark, and as such is valid. (5 Metcalf, 386; 3 Kent, 270.) But it is said, the condition that Fisher & Bennett should not publish is void, and therefore the whole bond is void. Thi does not follow. The two covenants are independent, and the entire consideration from Presbury to Fisher & Bennett being valid, surely he may recover for a breach of the valid condition. (8 T. R. 411; 8 East. 235; 15 ib. 442; 3 ib. 88; 6 N. H. 225; 5 Taunt. 727; 6 ib. 359; 3 ib. 226; 2 Watts & Serg. 236; 2 Kent, 467-8.)

Todd & Krum, for defendants in error.

The bond sued upon was void, because it is unreasonable and impolitic and in restraint of trade. (19 Pick. 51, and cases there cited; 7 Blackford, 344 and note; Chitty on Contracts, 664.)SCOTT, Judge, delivered the opinion of the court.

Fisher & Bennett were the publishers of a counterfeit detector, of which E. W. Clark was the editor. Presbury purchased out the interest of Fisher & Bennett in the paper, and they, for a valuable consideration, bound themselves in a penal bond to him, that neither they not Clark should thereafter be engaged in the business of publishing any such paper. Clark afterwards published a detector, and this suit was brought to recover damages for the breach of the condition of the bond. There were two verdicts for Presbury, and after the last trial, the judgment was arrested on the ground that the bond was void, being in restraint of trade.

1. Had the bond been only subject to the condition that Clark should not publish a detector, no case has been found that would warrant the court in maintaining that it was void, as being against the policy of the law. The obligation of Fisher & Bennett imposed no restraint on Clark. Notwithstanding their bond, Clark was as free to act as though it had never been made. The bond may be regarded as an indemnity to Presbury, in the event that his business should be interfered with by Clark. There is nothing so important in the rule of law that avoids contracts in restraint of trade, that should...