in order to effectuate this object, the master is not to restrain the servant for an unlimited space or time. In the present case, however, it does not seem to me that it is unreasonable that the defendant should be restricted, for twenty-four months, from commencing in the business of a milkman, within the distance of five miles from Northampton Square. That square appears to be the place where the plaintiff carried on his business; and we do not know but his customers extend throughout the district embraced by the restriction, and therefore cannot say that such a restriction is unreasonable. COLTMAN J. I am inclined to think that the plaintiff is entitled to judgment. With respect to the objection, that it does not appear that the consideration in respect of which the defendant entered into the agreement has been performed, the declaration contains a general allegation of performance of the agreement by the plaintiff; which is sufficient on general demurrer.(a) The second objection is, that the breach is not well. assigned. I agree that the breach must be alleged consistently with the meaning of the parties as expressed in the agreement. But it appears to me that two answers have been given to this objection, both of which are sufficient. I think the right of the plaintiff to maintain an action against the defendant for commencing business as a milkman within the limited space and time, vested on the determination of the contract, whatever may have been the way in which such contract was put an end to by the parties. In addition to that, the general allegation of performance is inconsistent with there being any violation of the contract on the part of the plaintiff. It is said, that it is not shewn that the contract was properly determined by the plaintiff; but, as already ob(a) Vide Kemble v. Mills, antè, Vol. I. 757. 1840. PROCTOR v. SARGENT. 1840. PROCTOR บ. SARGENT. served, such general allegation of performance, although it would not be a sufficient answer on special, is so on general, demurrer. With respect to the more important point in this case, I do not see that the contract itself is void, as being in restraint of trade. It is quite obvious that an injury might occur to the plaintiff by the defendant depriving him of a customer at the distance of five miles from Northampton Square, and that the latter might by degrees take away all his customers. Horner v. Graves proceeded on the ground that the court could plainly see that so wide a restraint as a hundred miles round York was wholly unnecessary for the protection of the plaintiff's business as a dentist. Here, it seems to me, that the limit imposed is one within which the defendant might interfere with the plaintiff's trade; and on this ground I concur in thinking that the plaintiff is entitled to judgment. MAULE J. The plea has very properly been given up, and the question therefore is, whether the declaration is sufficient. It is said that the consideration for the agreement, on the part of the defendant, is not duly alleged to have been performed by the plaintiff. The consideration for the promise by the defendant is, the promise of the plaintiff to fulfil the agreement on his part. Now the plaintiff has, in general terms, stated that he has performed the agreement; which is sufficient on general demurrer. The declaration also alleges that the defendant entered the plaintiff's service as agreed on, and was retained and employed therein; so that there is both a general and a specific allegation of performance of the agreement by the plaintiff; which is quite sufficient. Then, with respect to the breach : the part of the agreement on which it is founded is, that the defendant "would not, during the conti nuance of such service, or within the space of twentyfour calendar months after quitting, or being discharged from, the same, commence," &c. Here, the parties carefully abstain from using the words "in manner aforesaid;" and although the plaintiff and the defendant might have respectively insisted on having a month's notice in writing of the intention of the other of them to determine the service, yet, if they put an end to it by mutual consent, it was clearly the meaning of the latter part of the agreement that the defendant should not, in that event, carry on the business of a milkman within the specified district. I think, therefore, that this objection cannot be sustained. The chief objection is, that the declaration is bad on the face of it, inasmuch as it sets out an agreement which is in restraint of trade. There are undoubtedly many cases in which it is said that trade ought to be encouraged and not restrained; but, if this were res integra, I should say that it was questionable whether trade is promoted by setting aside restrictions like the present. Many think that trade would be benefited by allowing the public to carry it on in the way in which they have been accustomed to conduct it. Here, the plaintiff is not merely a milkman, but a cowkeeper, in which business much capital may be expended; and it has been thought that the more any trade is encouraged the more people will be induced to embark their capital in it. This is, however, a speculation, to which I should not have alluded if those who originally laid down the law had not commenced the discussion by stating the grounds on which they arrived at a different conclusion. Perhaps the best way would have been to hold all contracts of this nature to be legal, that do not interfere with the rights of individuals. The law, however, is established, that a contract in general restraint of trade is void; but it is also a part of the law, that a restriction, 1840. PROCTOR v. SARGENT. 1840. PROCTOR v. SARGENT. not to carry on a trade within a certain limit, if made for a good consideration, is valid. It is said that, where the limit appears to be colourable, or where the restraint is clearly unreasonable, the case must be considered as falling within the general rule, and not within the exception. In Horner v. Graves this court saw clearly that the contract was colourable, and the limit imposed unreasonable; but the facts of that case were different from those on which we are called upon to decide here. It does not follow, that because the court considered there that a restraint of 100 miles was unreasonable, we should hold that, in this case, a restraint extending to a district of five miles, was larger than was necessary to prevent any interference on the part of the defendant with the plaintiff's business. I do not see that there is any thing unreasonable in this restriction; and if I were called upon to decide that point, I should say that, in all probability, it was reasonable; because the business of a milkman is very likely to extend beyond a circle of two miles and a half round his residence, and it might be interfered with by a person carrying on the same business at a distance of five miles from such residence. I think, therefore, that the plaintiff is entitled to judgment. Judgment for the plaintiff. 1840. CLOW and Another v. BROGDEN and Others. Dec. 4. A. B., since COVENANT. The declaration stated that before In covenant and at the time of making the indenture of demise ation stated after mentioned, the plaintiffs and one Rebekah Bird, that the since deceased, were possessed of the premises therein- plaintiffs and after demised, for the residue of a term of ninety-four deceased, years wanting twenty days, commencing from the 24th being posday of June 1787; and being so possessed theretofore, sessed of a to wit, on the 17th of November 1825, by indenture then made between the plaintiffs and the said R. Bird of the first part, Benjamin Stacey of the second part, Robert Pawley of the third part, and the defendants and Richardson Borradaile, since deceased, and Lion Abraham Goldschmidt, since deceased, of the fourth part, the certain house for the residue of a certain term of ninety-four years wanting twenty days, demised the same to the defendants for twenty-one years, at a certain rent, by an indenture containing a covenant to repair, and alleged a breach of that covenant; by means whereof (a) all the estate and interest of the plaintiffs and A. B. in the house became and was forfeited, and the same reverted to C. D., who thereupon availed himself of the forfeiture, and brought an ejectment, in which he recovered judgment, and obtained possession of the house; by means of which premises the plaintiffs since the death of B. had lost the rents covenanted to be paid by the defendants, &c. The plea traversed the alleged breach of the covenant to repair; on which issue was joined. At the trial the plaintiffs claimed damages for the loss of their term, and for the amount of dilapidations, in the house demised to the defendants. It appeared by the particulars delivered in the ejectment brought by C. D., that such ejectment was founded upon the breach of certain covenants contained in a superior lease granted by C. D. for ninety-nine years, and that the breaches of covenant relied on were, the non-repair of various houses including the house in question (which was shewn to be out of repair), and for the breach of a covenant which was not contained in the lease to the defendants. Held, first, inasmuch as it did not appear that C. D. might not have recovered possession of the property for a breach of the covenant not contained in the lease to the defendants, that the plaintiffs were not entitled to recover the value of their term from the defendants. (a) Secondly, that they were entitled to recover the amount of the dilapidations in the house in question at the time that the ejectment was brought for the forfeiture. (a) Vide note A, at the end of this volume. |