Wilkinson v. Colley

• Decision Date: 01 October 1894
• Docket Number: 359
• Citation: 164 Pa. 35,30 A. 286
• Parties: E. L. Wilkinson, Appellant, v. H. C. Colley
• Court: Pennsylvania Supreme Court

30 A. 286

164 Pa. 35

E. L. Wilkinson, Appellant, v. H. C. Colley

No. 359

Supreme Court of Pennsylvania

October 1, 1894

Argued April 10, 1894

Appeal, No. 359, Jan. T., 1894, by plaintiff, from decree of C.P. Luzerne Co., Feb. T., 1892, No. 2, dismissing bill in equity. Reversed.

Bill to restrain defendant from practicing as physician within certain limits.

The case was referred to G. R. Bedford, Esq., as master.

From the record it appeared that, on Feb. 6, 1888, plaintiff and defendant entered into the following contract in writing and under seal:

"Whereas each of the parties aforesaid are practicing physicians at Lehman township, and the vicinity adjacent thereto. The said H. G. Colley, in consideration of two hundred dollars, to him in hand paid by the aid E. L. Wilkinson, that the said H. G Colley shall and will not practice as a physician at Lehman or in that adjacent country within eight miles of Lehman Centre, for the term of ten years from the date hereof, except in case of accident or other cause of extreme necessity, then in such case said H. G. Colley may render assistance as a physician, but the compensation for such medical assistance is to go to the said E. L. Wilkinson. The said H. G. Colley further agrees to use his influence in favor of said E. L. Wilkinson, and, if necessary, to remain at Lehman for a period of three months from the date hereof in order to prevent opposition to said E. L. Wilkinson; the said H. G. Colley further agrees that he shall not manufacture or have put on sale any medical preparation or compound during the period named in this contract. And for the true performance of all and every the covenants and agreements aforesaid the said H. G. Colley bindeth himself in the penal sum of four hundred dollars firmly by these presents."

The circumstances under which the breach of the contract occurred appear by the opinion of the Supreme Court.

The master recommended that the bill should be dismissed. Exceptions to the master's report were dismissed by the court, and a decree entered dismissing the bill.

Errors assigned were dismissal of exceptions and entry of decree, quoting them.

Therefore the decree of the court below dismissing the bill is reversed at costs of appellee, and the bill reinstated; it is further ordered that an injunction issue directed to defendant, restraining him from practicing as a physician at Lehman Centre, and within eight miles thereof, until the 6th day of February, 1898, and from manufacturing or putting on sale any medical preparation during the same time.

Q. A. Gates, for appellant. -- A physician may agree not to practice in a certain place, or in a certain place for a certain time, and the agreement will be binding: McClurg's Ap., 58 Pa. 51; Hall's Ap., 60 Pa. 458; Palmer v. Graham, 1 Pars. 476; Gillis v. Hall, 7 Phila. 422.

When a man has bound himself by his covenant, to do, or not to do, a certain thing, and has fixed a certain sum which he will pay upon the breach of his covenant, he is not absolved thereby from a specific performance of his agreement, and when the justice of the case requires such specific performance, equity will enforce it: Moore v. Colt, 127 Pa. 289; Keck v. Bieber, 148 Pa. 645.

Unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms can neither be added to nor subtracted from by parol evidence: Wodock v. Robinson, 148 Pa. 503; Irvin v. Irvin, 142 Pa. 271; Stull v. Thompson, 154 Pa. 43; Halberstadt v. Bannan, 149 Pa. 51; Clarke v. Allen, 132 Pa. 40; Zeigler v. McFarland, 147 Pa. 607; Martin v. Berens, 67 Pa. 459.

Under the answer in this case, the burden of proof comes upon defendant, as he sets up new matter not responsive to the bill; he is in the same situation as though he was in a court of equity as plaintiff seeking to have the written contract reformed: Story's Equity, § 15; 3 Greenl. Ev. § 290; Shea's Ap., 121 Pa. 302; Smith v. Ewing, 151 Pa. 256; Bank v. Hartman, 147 Pa. 558; Bank v. Thompson, 144 Pa. 393.

The contract having been violated and damages demanded in the bill, it was the duty of the master to award to plaintiff, not only the injunction prayed for, but a judgment for damages sustained: Waters v. McElroy, 151 Pa. 549.

W. H. McCartney, for appellee. -- In each case we must look at the language of the contract, the intention of the parties as gathered from its provisions, the subject of the contract and its surroundings, the ease or difficulty of measuring the breach in damages, and the sum stipulated, and from the whole gather the view which good conscience and equity ought to take of the case: Streeper v. Williams, 48 Pa. 450; Clements v. R.R., 132 Pa. 445; Kelso v. Reid, 145 Pa. 606; Keck v. Bieber, 148 Pa. 645; Bigony v. Tyson, 75 Pa. 157.

The plaintiff has an adequate remedy at law for the breach of the agreement: Graham v. Bickham, 4 Dal. 149; Shreve v. Brereton, 51 Pa. 175; Moore v. Colt, 127 Pa. 294; Clements v. R.R., 132 Pa. 445; Sedgwick on Damages, § 424; Clark's Ap., 62 Pa. 447; Gray v. R.R., 1 Grant, 412; Richards' Ap., 57 Pa. 105; Hilliard on Injunctions, 271; Adams's Equity, 485; 2 Story's Equity, § 925.

Before WILLIAMS, McCOLLUM, MITCHELL, DEAN and FELL, JJ.

OPINION

MR. JUSTICE DEAN:

The bill in this case was for an injunction to restrain defendant from practicing as a physician within eight miles of Lehman Centre, in Luzerne county, for a period of ten years from 6th of February, 1888.

It appeared, from the bill, answer and testimony, that Dr. Colley, the defendant, had been a practicing physician at Lehman Centre from 1876 until 6th February, 1888. Dr. Wilkinson, the plaintiff, was a younger man, and had commenced the study of medicine with Colley in spring of 1883, when only twenty-two years of age; afterwards, in March, 1885, he graduated from the College of Physicians and Surgeons at Baltimore. He then returned to Lehman Centre and formed a partnership with Colley in the practice of medicine. At the expiration of a year, the partnership was dissolved, and Wilkinson continued in the practice for himself, down to the 6th of February, 1888; Colley also practicing for himself until July, 1886. Three years before, he had sold out his practice to one Dr. Hise, stipulating verbally that, at the end of three years, he would cease practicing. Hise's purchase included, besides Colley's practice, his property in Lehman Centre, valued at $1,525, and Hise for the same consideration sold to Wilkinson. Colley, at the end of the three years, stopped practicing about three months, then, disregarding his agreement with Hise, commenced again, and continued to February, 1888. On the 6th of that month, he and Wilkinson entered into another agreement, this time in writing, whereby, in consideration of two hundred dollars, Colley covenanted: 1. That he would not practice as a physician at Lehman Centre, or within eight miles thereof, for a period of ten years. 2. That he would use his influence in favor of Wilkinson, and remain at Lehman for three months, so as to prevent opposition. 3. That he would not manufacture or put on sale any medical preparation or compound during the ten years. 4. And for the true performance of the covenants of the contract, bound himself in the penal sum of four hundred dollars.

Wilkinson paid the full consideration, and Colley removed to Columbia county, but in less than four years returned to Lehman Centre, and commenced again to practice medicine there. Wilkinson notified him that he was violating his contract, and requested him to stop practice, but Colley persisted; even sent cards to a large number of Wilkinson's patients, inviting their patronage. Thereupon Wilkinson filed this bill, averring the facts as stated, and praying for an injunction.

The answer of Colley admits the execution of the agreement, and the payment of the consideration; admits that he resumed practice in Lehman, and the manufacture and sale of medicine; but sets up a parol understanding or agreement with Wilkinson, that he was to return if he paid back the consideration, and averring the four hundred dollars designated as a penalty in the agreement, is liquidated damages, and further averring his readiness and ability to pay the same.

When the bill was filed, a preliminary injunction was awarded, which was afterwards, in an opinion filed by Presiding Judge WOODWARD, dissolved, and the case sent for hearing to a master, who, on the authority of the opinion already filed, dissolving the injunction, reported against the plaintiff; on exceptions being filed, they were overruled by the court, and the bill dismissed at costs of plaintiff. From this decree, plaintiff appeals.

The decree of the learned judge of the court below is based upon two conclusions: 1. That the penal sum of four hundred dollars in the contract, is to be treated as damages liquidated by the parties. 2. That the plaintiff has an adequate remedy at law for the breach of the contract. It follows that if the first conclusion, that the penalty of $400 is liquidated damages, be correct, the second is also correct. For all difficulty in liquidating damages, which from the very nature of the contract is otherwise great or impossible, is removed by the express stipulation of the parties that the damages shall be fixed at $400. The remedy at law for the recovery of a sum certain is complete and adequate.

The question then recurs, was it the intention of the parties that Colley was not to practice again for ten years, or that ...