Tarry v. Johnston
| Citation | 114 Neb. 496,208 N.W. 615 |
| Decision Date | 09 April 1926 |
| Docket Number | No. 25143.,25143. |
| Parties | TARRY ET AL. v. JOHNSTON ET AL. |
| Court | Supreme Court of Nebraska |
TARRY ET AL.
v.
JOHNSTON ET AL.
No. 25143.
Supreme Court of Nebraska.
April 9, 1926.
A suit for an injunction to prevent a licensed physician from practicing his profession within a restricted territory in violation of his contractual obligations is one of equitable cognizance.
A licensed physician, who purchases the good will and other property of a sanitarium and agrees not to practice his profession within a radius of 150 miles therefrom, if he fails
[208 N.W. 616]
to pay the purchase price and subsequently loses possession by default, may be enjoined in equity from violating his restrictive agreement, when that remedy is essential to the protection of the seller's contractual rights.
An owner of a sanitarium may employ physicians to practice their profession therein without subjecting himself to penalties for practicing medicine without a license.
In an action at law for the loss of good will, the evidence must contain sufficient data to enable the jury, with a reasonable degree of certainty and exactness, to estimate the actual damages.
An action at law on purchase-money notes representing only portions of the consideration for the sale does not afford an adequate remedy for the purchaser's breach of the contract, where unpaid, accruing, net profits of a lucrative business included in the sale are also portions of the purchase price.
A contract of sale, providing that partial payments of the purchase price during a stipulated period of years may be retained as liquidated damages for the purchaser's breach of contract, is not necessarily void.
A licensed physician, who purchases the good will and other property of a sanitarium, may bind himself by an agreement not to practice his profession within a radius of 150 miles therefrom, if the restriction is necessary for the protection of the seller's contractual rights and does not injure the public by restraining trade.
A contract which fails to specify in direct terms the time limit of restraint on a physician's right to practice medicine in a restricted area is not for that reason void, a reasonable time being implied.
Appeal from District Court, Douglas County; W. G. Hastings, Judge.
Suit by Alpha Fay Tarry and another against Roy S. Johnston and another for an injunction. From a decree for plaintiffs, defendants appeal. Affirmed.
McKenzie, Lower & Sheehan, of Omaha, and Burkett, Wilson, Brown & Wilson, of Lincoln, for appellants.
Benj. S. Baker and Ralph T. Wilson, both of Omaha, for appellees.
Heard before MORRISSEY, C. J., and ROSE, DEAN, DAY, GOOD, THOMPSON, and EBERLY, JJ.
ROSE, J.
This is a suit in equity to protect violated rights of plaintiffs under a contract by them to sell and by Ray S. Johnston to buy the business and property of the “Dr. E. R. Tarry Sanitarium.” The answer to the petition challenged jurisdiction in equity and contained pleas that the contract was fraudulent and void. The district court rendered a decree in favor of plaintiffs. Defendants appealed.
The subject-matter of the sale was formerly the property and business of E. R. Tarry, a practicing physician in Omaha and the proprietor of a sanitarium there. He was a proctologist, a specialist in the treatment of rectal diseases. He employed a secret method of treatment and by advertisements and cures during a period of years he built up an extensive and lucrative practice with patients from many places throughout the United States. He employed as an assistant, for $150 a month, Ray S. Johnston, a physician with about a year's practice at Waterloo, a village near Omaha. This arrangement was continued for nearly a year. In 1918 Johnston's compensation was changed to 25 per cent. of the net profits of Tarry's professional business, but the duties of Johnston's employment and his relationship to Tarry and to the sanitarium remained the same until Tarry died intestate March 20, 1920, leaving as his only heirs his widow, Alpha Fay Tarry, and their infant daughter, Virginia K. Tarry. All the inheritable property of Tarry passed to his heirs...
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