Randolph v. Graham

• Decision Date: 31 October 1923
• Docket Number: (No. 7082.)
• Citation: 254 S.W. 402
• Parties: RANDOLPH v. GRAHAM.
• Court: Texas Court of Appeals

Page 402

254 S.W. 402

RANDOLPH v. GRAHAM.

(No. 7082.)

Court of Civil Appeals of Texas. San Antonio.

October 31, 1923.

Rehearing Denied November 28, 1923.

Appeal from District Court, Guadalupe County; Lester Holt, Judge.

Suit by R. L. Graham against V. P. Randolph. Judgment for plaintiff, and defendant appeals. Affirmed.

Wurzbach, Wirtz & Weinert, of Seguin, for appellant.

Dibrell & Mosheim, of Seguin, for appellee.

COBBS, J.

This suit was brought by appellee, a physician, against appellant, a physician, to restrain the latter from practicing medicine in the town of Schertz, in Guadalupe county, or within a radius of 20 miles of Schertz, and the temporary restraining order was granted as prayed for. Appellee purchased the property of appellant in Schertz and took conveyances therefor.

Prior to the delivery of the deeds and payment of the purchase money, the following agreement was entered into:

"The State of Texas, County of Guadalupe.

"This contract made and entered into by and between V. P. Randolph, party of the first part, and R. L. Graham, party of the second part, witnesseth:

"That party of the first part, having sold his property in Schertz, Texas, and his good will for a valuable consideration to party of the second part, agrees not to practice medicine in Schertz or within a radius of twenty (20) miles of Schertz.

"This contract is executed in duplicate, and one copy delivered to each of said parties, this 9th day of December, A. D. 1922. [Signed] V. P. Randolph, Party of the First Part. [Signed] R. L. Graham, Party of the Second Part."

Prior to this sale and agreement appellant had resided and had his home in Schertz, where he was then engaged in the practice of medicine. The contention of appellee is that, as a part of the consideration of the trade, he was not only purchasing appellant's tangible property but was likewise purchasing his good will. After this sale the appellant moved and remained away, but he recently returned and began the practice of medicine in Cibolo in Guadalupe county, within the prohibited distance.

We must assume the court found that the making of the alleged contract not to practice the profession of medicine by appellant within the prohibited distance was a part of the consideration of the entire contract whereby appellee was induced to make the purchase. Appellee testified:

"My purpose in agreeing on the 20-mile limit was simply to have an agreement with Dr. Randolph so he would not interfere with my practice. I thought it was necessary. This was a large debt that I had assumed, and I understood, too, that this contract with Dr. Cotham had the 20 miles limit also. I had a big undertaking then. Twenty miles is not an extraordinary distance for a physician to go to attend patients. We have good roads there, and automobiles travel very rapidly. Twenty miles is not much of a distance to go. I do not know whether Seguin is beyond the 20 miles or not. It is right about the limit. I expect the west line of the town of Seguin is over 20 miles of Schertz, and I expect the west line of San Antonio is more than 20 miles. * * * I thought it was necessary to protect myself to enable me to pay for the property that he would not interfere with my practice in a 20-mile radius."

Such a contract is not to be regarded as unreasonable, when fairly and openly made, nor in restraint of trade. The good will of a professional man may be as much an asset and a thing to be sold as that of a merchant. Sanderfur v. Beard (Tex. Civ. App.) 249 S. W. 275, 276; Wolff v. Hirschfeld, 23 Tex. Civ. App. 670, 57 S. W. 572.

Whatever the strict rule of the common law may have been in condemning contracts in restraint of trade, such doctrine is much modified in America, and is not ordinarily made to apply to the contracts of professional men, skilled artisans, or purchasers of good and merchandise, and the good will appertaining thereto, and binding the seller not to engage in the same business for a certain time limit and within a specified radius.

It is not apparent why it is unlawful for a physician, if he can get any one to purchase his property and his good will, to do so, just as a merchant may do the same thing, and bind the seller not to further engage in the same business within a certain distance or radius.

We see no reason whatever to broadly hold such a contract void. It is a property right, personal in its nature, and should be left to the liberty and freedom of contract. There is no such public policy involved in it as would require the physician to keep his good will for his own interest or restrain him from abandoning his practice and selling out his estate and good will together. Such a sale is contractual and thereby lawful. That such a sale is valid and enforceable we need look no further than to the case of Wolff v. Hirschfeld, 23 Tex. Civ. App. 670, 57 S. W. 572, decided by this court.

The similarity between the two cases is to be noted in more than one particular. They are both from the same county, but differ as to time, if that makes any noticeable difference. In the Wolff Case, supra, the...