SOWELL CHAMPION. [*419] 1837. Feb. 6. [ 438 ] they ought to find a verdict in their favour; and that he was mistaken in leaving it at all as an open question for their consideration. It follows that, as these defendants are to have the same benefit now as if the Judge had given that strong direction, and a verdict had passed in their favour, *a verdict of Not guilty ought now to be entered for them. Rule absolute. IN THE EXCHEQUER CHAMBER. (ERROR FROM THE KING'S BENCH.) HITCHCOCK . COKER (1). (6 Adol. & Ellis, 438-457; S. C. 1 N. & P. 796; 2 II. & W. 464; 6 L. J. (N. S.) Ex. 266.) Declaration, in assumpsit, that, before and at the time of the promise, plaintiff was a druggist, and had taken defendant into his service as assistant, at an annual salary, on condition (among other things) that defendant should enter into and perform the agreement after mentioned; that defendant, in consideration of the premises, and in performance of the condition, by an agreement, reciting as above, agreed with plaintiff that, if defendant should at any time thereafter exercise the trade or business of a chemist and druggist in the town of T., or within three miles thereof, defendant should pay plaintiff 5007. as liquidated damages. Allegation of mutual promises to perform the agreement; and that defendant exercised the trade within T. Breach, non-payment of 500!. Verdict for plaintiff, on non assumpsit. Held, by the Court of Exchequer Chamber (on error from the Court of K. B., in which judgment had been arrested), 1. That there was a legal consideration for the contract. 2. That the Court could not enter into the question, whether the consideration was equal in value to the restraint agreed to by the defendant. 3. That the restraint was not shown to be unreasonable or oppressive by the circumstance that its duration was not limited to the life of the plaintiff, or to the time during which he should carry on the business. Judgment for the plaintiff. ASSUMPSIT. The declaration stated that, before and at the time of making the agreement and the promise of defendant thereinafter mentioned, the plaintiff was a druggist, and had taken defendant into his service as an assistant in his said (1) Cited by LINDLEY, M. R., and followed in Haynes v. Doman [1899] 2 Ch. 13, 30, 68 L. J. Ch. 419, 421, SO L. T. 569, C. A.; a case in which all the principal modern authorities. are cited and considered. - -R. C. COKER. [ *439 ] trade, at a certain annual salary, upon condition (amongst other HITCHCOCK things) that defendant should enter into and observe and perform the agreement thereinafter contained: that, in consideration of the premises, and in performance of the said condition, to wit on 12th of April, 1832, by a certain agreement then made by and between defendant of the one part and plaintiff of the other, (after reciting that plaintiff had taken defendant into his service as an assistant at a certain annual salary, upon condition, amongst other things, that defendant should enter into and observe and perform the agreement thereinafter contained) the defendant did, in and by the said agreement, promise and agree to and with the plaintiff that, if defendant should at any time thereafter, directly or indirectly, either in his own name or in the name of any other person, use, exercise, carry on, or follow the trades or businesses of a chemist and druggist, or either of them, within the town of Taunton, in the county of Somerset, or within three miles thereof, then defendant, his executors, &c., should or would, on demand, pay plaintiff, his executors, &c., 500l., as and for liquidated damages; and the said agreement being so made as aforesaid, afterwards, to wit on &c., (mutual promises to perform the agreement): and, although &c. (allegation of performance by plaintiff), yet defendant hath not performed the said agreement on his part, but, on the contrary, afterwards, and after the making the said agreement, to wit 21st of April, 1832, defendant in his own name used and exercised, carried on and followed, the trades and businesses of a chemist and druggist within the said town of T., in the said county of S., contrary to the said agreement: and, although plaintiff afterwards, to wit 20th of January, 1835, demanded of defendant the said 500l., yet defendant, not regarding &c., hath not as yet paid &c. Plea, non assumpsit. On the trial before Gurney, B., at the Somersetshire Spring Assizes, 1835, the jury, by agreement of the parties, found a verdict for the plaintiff, assessing the actual damages at 500, whether the 500l. in the agreement mentioned was to be considered as liquidated damages or a penal sum. In Easter Term, 1835, Erle obtained a rule, in the Court of King's Bench, to show cause why judgment should not be arrested. HITCHCOCK [ *440] [ *441 ] . CH . CH Bompas, Serjt. and Crowder showed cause in Easter Term last (1): The agreement recites that the plaintiff *had taken the defendant in consideration of his performing the agreement; and then there are mutual promises to perform, which are the consideration for each other. The promise alleged in the declaration to be broken is, therefore, on the whole, upon an executory consideration. It is not as if the defendant had promised in consideration of the plaintiff having taken him. The general question is, whether the restraint of trade here be larger than the law will sanction. Some cases are collected in Com. Dig. Trade (D 3), and in note (1) to Hunlocke v. Blacklowe (2). The leading case is Mitchel v. Reynolds (3). There a bond not to carry on the trade of a baker within a parish was held good; and PARKER, Ch. J. said that, whether by promises or bond, a general restraint was bad, but a restraint as to a particular place good, if there appeared a sufficient consideration. Many parishes are larger than the space to which the present contract extends. In Wickens v. Erans (4) parties mutually agreed to abstain from interfering with each other in large districts of England, and it was held good. In Horner v. Graces (5) an agreement not to practise as a dentist within 100 miles of York, without the plaintiff's consent, while the plaintiff should be practising as a dentist, was held bad, on the ground that the restraint was larger than was needed for the plaintiff's protection. (COLERIDGE, J.: Here the agreement restrains the defendant, though the plaintiff should leave the place, or quit practice, or die.) The agreement would probably be construed as a personal contract, expiring *with the lives of the parties. Besides, the plaintiff might choose to bargain for a restraint enabling him to sell his practice, or to bequeath it. Many of the agreements (1) April 30, 1836, before Lord Den- S. C. in 1 Smith's Leading Cases, man, Ch. J., Littledale, Patteson, and p. 181. (4) 32 R. R. 806 (3 Y. & J. 318). (5) 33 R. R. 635 (7 Bing. 735). which have been held good were in this form. In Davis v. Mason (1) a bond conditioned that the defendant, who had been taken as assistant to the plaintiff, a surgeon and apothecary, should not practise within ten miles of Thetford, was held good. There the consideration was like that in the present case, even if it be held executed. In that case there was no limitation of the contract to the duration of the plaintiff's practice or life: and there was none such in Chesman v. Nainby (2), or in Hayward v. Young (3), where the restraint extended over twenty miles. In Young v. Timmins (4) the restraint was held to be bad, as being without adequate consideration, the one party being restrained from working without the consent of the other, who was not bound to find work, and was expressly allowed to employ others, and rescind the agreement at three months' notice. When it is said that there must be adequate consideration, it is not meant that the Court will inquire whether the party submitting to the restraint made a judicious contract. There must be a legal consideration to support the promise; and the cases decide that the taking into service is such. In Mitchel v. Reynolds (5) one test put is the advantage to the party who imposes the restraint. In Homer v. Ashford (6) it was held sufficient, on general demurrer, that the declaration stated the covenant to be "for the considerations *therein mentioned." This shows that the magnitude of the consideration moving the party promising is not to be weighed by the Court, if there be some legal consideration. Erle and Kinglake, contrà : No consideration appears for the agreement itself, except that the plaintiff had taken the defendant into his service that is an executed consideration, and without a request. Mutual promises form a good consideration, where the agreement itself is good; but, according to the cases, an agreement in restraint of trade must itself be upon good consideration. It makes no difference (1) 2 R. R. 562 (5 T. R. 118). (2) 2 Str. 739; S. C. 2 Ld. Ray. 1456; S. C. in error, in Dom. Proc. 1 Br. P. C. 234 (2nd ed.). (3) 2 Chitty, 407. (4) 1 Cr. & J. 331; 1 Tyr. 226. HITCHCOCK v. COKER. [ *442 [ 2. COKER, HITCHCOCK that the agreement states the plaintiff to have taken the defendant on condition that the latter would perform an agreement not then existing. But, independently of this objection, there is no consideration unless the plaintiff part with, or the defendant receive, some advantage. Here the plaintiff is bound to nothing, and the defendant gets nothing. At all events the consideration is not adequate to the restraint. In Mitchel v. Reynolds (1) PARKER, Ch. J., says, "Where a contract for restraint of trade appears to be made upon a good and adequate consideration, so as to make it a proper and useful contract, it is good." In Gale v. Reed (2) Lord ELLENBOROUGH says, "The restraint on one side meant to be enforced should in reason be coextensive only with the benefits meant to be enjoyed on the other;" and he adds that the Courts will so construe the agreements as to make, if possible, the benefits coextensive. Therefore a mere technical consideration is not enough. In an Anonymous case in Moore (3), it was held that no *action lay on a bond, by an apprentice of a mercer of Nottingham to his master, not to exercise the trade in Nottingham for four years. In another Anonymous (4) case in the same book, a bond conditioned not to exercise the trade of a blacksmith in South Mims was held bad. No consideration appeared in these cases; and the Court presumed none, though the contracts were under seal. In Chesman v. Nainby (5) the Court thought there was ground for inferring a covenant to instruct for three years. In Horner v. Graves (6) the Court adverted to the question of the slenderness of consideration as a proper test, though the decision was principally on another point. Further, an agreement of this sort, to be good, must not be oppressive; which it is, if it impose a restraint greater than is necessary for the plaintiff's protection (7). Here the time during which the defendant is restrained is longer than the plaintiff can require, inasmuch as it is not put an end to by the plaintiff's death or retirement from business. Suppositions have [*443 ] (1) 1 P. Wms. 186. (2) 9 R. R. 376 (8 East, 80). (4) Moore, 242, pl. 379; S. C. 2 (5) 2 Str. 739; S. C. 2 Ld. Ray. 1456; S. C. in error, in Dom. Proc. 1 Br. P. C. 234 (2nd ed.). (6) 33 R. R. 633 (7 Bing. 735). (7) Per CURIAM, in Horner v. Graves, 33 R. R. at p. 642 (7 Bing. 743.) |