within 20 miles of A;' but restricting a dentist over a territory of 200 miles was held unreasonable."

A contract, relating to a compound involving a secret in its preparation, based upon a valuable consideration, and limited as to the space within which, though unlimited as to the time for which the restraint is to operate, is reasonable and enforceable. But restraining a solicitor from practice in England was sustained.'

A contract applying to a particular place or section of the country and leaving the major part open for the business is valid. " A contract excluding a city and "vicinity" includes reasonably construed, a space of ten miles from the city limits; or within a radius of ten miles of a town named."

Under a contract not to carry on a business within a certain distance, the mileage is to be measured in a straight line."

A contract not to carry on a business within a radius of ten miles of a village, means within a radius of ten miles of the center of such village. '

9

$35. Limit of State Lines.-In this country, where state lines interpose so slight a barrier to business intercourse, the Supreme Court of the United States seems much more inclined to treat a limitation, less than the entire country, under certain conditions, as reasonable; while state courts, limited to their state lines, have seemed unwilling that trade should be excluded from their jurisdiction, or that a man should be compelled to transfer his residence and allegiance to another State in order to pursue his avocation."

1 Hayward v. Young, 2 Chit. 407; Hitchcock v. Coker, 6 Ad. & El. 438. Horner v. Graves, 7 Bing. 735.

Foule v. Park, 131 U. S. 88. 33 L. ed. 67.

Whittaker v. Howe, 3 Beav. 383.

Pike v. Thomas, 4 Bibb, 489, 7 Am. Dec. 741; Grundy v. Edwards, 7 J. J.
Marsh. 368, 23 Am. Dec. 409. See Green v. Price, 11 Mees. & W. 653.

• Timmerman v. Dever, 52 Mich. 34.

Cook v. Johnson, 47 Conn. 175, 36 Am. Rep. 64.

Mouflet v. Cole, L. R. 7 Exch. 70, aff'd 21 Week. Rep. 175; Duignan v.
Walker, 33 L. T. 256.

Cook v. Johnson, 47 Conn. 175.

10 Oregon Steam Nav. Co. v. Winsor, 87 U. S. 20 Wall. 64, 22 L. ed. 315. "Taylor v. Blanchard, 13 Allen, 375; Dunlop v. Gregory, 10 N. Y. 241; More v. Bonnet, 40 Cal. 251, 6 Am. Rep. 621; Nobles v. Bates, 7 Cow. 307; Wright v. Ryder, 36 Cal. 342; Pike v. Thomas, 4 Bibb, 486, 7 Am. Dec.

It is said in Chappel v. Brockway, 21 Wend. 157, that contracts which go to the total restraint of trade, as that a man will not pursue his occupation or carry on his trade anywhere in the State, are void. A covenant providing that the covenantor should desist from selling mattresses "in all the territory of the State of New York west of the city of Albany" was held void as embracing too large a territory.'

It is said that the restriction territorially must not include the whole State.' But this depends upon the business restrained and its demands.'

But the correct test to be applied in determining whether a restraint is reasonable or not is to consider whether it is such only as to afford a fair protection to the interests of the party in whose favor it is given; and not so large as to interfere with the interests of the public.*

A covenant in restraint of trade which is unlimited in regard to space, except by the words "so far as the law allows," is not void as being against public policy."

36. Territorial Limitations Held too Restrictive-Instances. But an agreement never to engage in a certain trade "in the city and county of San Francisco or State of California" was held by the courts in that State too extensive in its restriction and therefore void. A covenant by a corporation with a citizen of another State not to run a steamboat or allow its machinery to

'Laurence v. Kidder, 10 Barb. 641.

Peltz v. Eichele, 62 Mo. 171; Taylor v. Blanchard, 13 Allen, 370; Dean v. Emerson, 102 Mass. 480; Wright v. Ryder, 36 Cal. 242.

Diamond Match Co. v. Roeber, 9 Cent. Rep. 181. 106 N. Y. 473; Gibbs v. Consolidated Gas Co. 130 U. S. 408, 32 L. ed. 984; Texas & P. R. Co. v. Southern Pac. R. Co. 41 La. Ann. 970; Herreshoff v. Boutineau, 8 L. R. A. 469, 17 R. I.—

Mandeville v. Harmon, 5 Cent. Rep. 625, 42 N. J. Eq. 185; Catt v. Tourie, L. R. 4 Ch. 659; Leather Cloth Co. v. Lorsont, L. R. 9 Eq. 349; Alsopp v. Wheatcroft, L. R. 15 Eq. 59; Long v. Towl, 42 Mo. 545; Pike v. Thomas, 4 Bibb, 486; Grundy v. Edwards, 7 J. J. Marsh. 368; Turner v. Johnson, 7 Dana, 435; Grasselli v. Lowden, 11 Ohio St. 349; Chappel v. Brockway, 21 Wend. 157; Gilman v. Dwight, 13 Gray, 356; California Steam Nav. Co. v. Wright, 6 Cal. 258; Dunlop v. Gregory, 10 N. Y. 241; Hubbard v. Miller, 27 Mich. 15; Beard v. Dennis, 6 Ind. 200; Horner v. Graves, 7 Bing. 743.

'Davies v. Davies, 56 L. J. Ch. 481, 35 Week. Rep. 697.

*More v. Bonnet, 40 Cal. 251, 6 Am. Rep. 621.

be used on any other boat in any of the waters of certain states was treated as void as against public policy.'

A contract not to make printer's rollers in New York city, or within 250 miles thereof, is too restrictive as to space for that particular interest.' But a covenant by a corporation not to run or employ, or suffer to be run or employed, a certain steamer upon any of the routes of travel, or the rivers, bays or waters of the State of California, or the Columbia River and its tributaries, for the period of ten years, was held valid in Oregon.'

A contract excluding the territory of New York west of Albany as a market for mattresses is too large.*

§ 37. Limitations in Regard to Time. The duration of the restraint in point of time may be indefinite, if in other respects it is partial and reasonable, the nature of the business being considered and the condition of the country."

An agreement to relinquish a business and not to carry it on thereafter, limited as to place, but unlimited as to time, is not void as being in restraint of trade."

An agreement that a company shall have the exclusive right for fifteen years to furnish drawing-room and sleeping cars for the use of a railroad company, and that the latter shall not, during that period, contract for cars of that kind with any other party, is not void as against public policy or as in restraint of trade.

But the formation of a partnership alone will not authorize a perpetual restriction as to time."

§ 38. Brewers' Contracts.-The sale of property may be conditioned that if a house of public entertainment be opened, its sup'Oregon Steam Nav. Co. v. Hale, 1 Wash. 283, 34 Am. Rep. 803.

Bingham v. Maigne, 20 Jones & S. 90.

Oregon Steam Nav. Co. v. Winsor, 87 U. S. 20 Wall. 64, 22 L. ed. 315. • Lawrence v. Kidder, 10 Barb. 641.

Bowser v. Bliss, 7 Black f. 344, 43 Am. Dec. 93; Cook v. Johnson, 47 Conn. 175; Bunn v. Guy, 4 East, 190; Chesman v. Nainby, 2 Strange, 739, 2 Ld. Raym. 1456; Hastings v. Whitley, 2 Exch. 611; Wickens v. Evans, 3 Younge & Jer. 318; Pierce v. Woodward, 6 Pick. 206; Goodman v. Henderson, 58 Ga. 567; Mumford v. Gething, 7 C. B. N. S. 317; Ward v. Byrne, 5 Mees. & W. 548.

• Web ter v. Buss, 61 N. H. 40, 60 Am. Rep. 317; Watrous v. Allen, 57 Mich. 362, 58 Am. Rep. 363.

Chicago, St. L. & N. O. R. Co. v. Pullman Southern Car Co. 139 U. S. 79, 35 L. ed. 97.

Carroll v. Giles, 4 L. R. A. 154, 30 S. C. 412.

plies shall be sought exclusively from the person who executes the conveyance of the estate.

A restraint preventing a person from carrying on trade within a certain limit of space, though unlimited as to time, may be good, and the limit of space may be according to the nature of the contract. An instance of such a covenant being upheld is the case of Wilson v. Hart, L. R. 1 Ch. 463. In Catt v. Tourle, L. R. 4 Ch. 654, the court took judicial notice that the covenant is an extremely common one in favor of brewers upon a sale of land by them, that they shall have the exclusive right of supplying beer to any public house erected on the land, that every court of justice has had occasion to consider these brewers' covenants, and must be taken to be cognizant of the distinction between what are called free public houses and brewers' public houses which are subject to this very covenant, that it would be introducing very great uncertainty and confusion into a very large and important trade, if the court were to suggest any doubt as to the validity of a covenant so extremely common as this is. It was denied that there is any ground for the distinction, which has been suggested, that such a covenant might be good in a lease for 21, 50 or 100 years, but is not good if entered into as part of a transaction where the fee simple of property is conveyed.

It was then suggested that at some future period of the cause, upon a motion, as in the case of Hills v. Croll, 2 Phil. 60, or at the hearing of the cause, circumstances might be shown which would render it improper for the court to interfere-it might be shown either that the plaintiff had placed himself in such a situation that he ought not to be allowed to exercise his right, or that the defendant had no notice of the covenant when he purchased the property; and then possibly Hills v. Croll, 2 Phil. 60, might have some application, though it was suggested that it is very difficult. to reconcile that case with Lumley v. Wagner, 1 DeG. M. & G. 604, which has been repeatedly followed; and if Hills v. Croll is to stand with that case at all, it can only be upon its particular circumstances. And Sir G. M. Giffard, L. J., added, "that, with respect to Hills v. Croll, that case, as was said by Lord St. Leonards, in his judgment in Lumley v. Wagner, 1 DeG. M. & G. 604, was decided according to its particular circumstances; that

unless it is taken as laying down that the court is to refuse to act in the negative, wherever there is a correlative obligation which it cannot enforce, it does not apply; if it is taken as going that length it is contrary to Lumley v. Wagner, and must be considered as overruled; and he added: "Lastly, with respect to this covenant being invalid by reason of its being in restraint of trade," it does not go beyond the ordinary brewers' covenant except in this particular, viz., that the ordinary brewers' covenant is generally between lessor and lessee or mortgagor and mortgagee, whereas the present covenant is between the vendor and purchaser of the fee; and this difference does not make the covenant void.

So an agreement by the proprietor of a public garden, in consideration of a loan, to buy all his beer of the lender, so long as he should be willing to supply the same at the fair current market price thereof, is not a restraint of trade.'

§ 39. Limitations Imposed on Seller to Protect Purchaser of Business or Stock.-Contracts for a limited restraint are valid if entered into for good reasons such as to afford fair protection to the purchaser of a business."

A party may legally purchase the trade and business of another for the very purpose of preventing competition, and its validity, if supported by a consideration, depends upon its reasonableness as between the parties."

Where one partner sells his interest in the business to his copartner and agrees to retire altogether from business, the agreement binds the party selling from engaging in business, only so far as such engagement would injure the business of the party purchasing, and is not void as being in restraint of trade.*

But where a land agent sold his business, with an agreement not to re-engage in the business in the same place for three years,

Ebling v. Bauer, 17 Week. Dig. 497, distinguishing Dunlop v. Gregory, 10 N. Y. 241.

Chappel v. Brockway, 21 Wend. 157; Nobles v. Bates, 7 Cow. 307; Heichew v. Hamilton, 3 G. Greene, 596, 4 G. Greene, 217; Hedge v. Lowe, 47 Iowa, 137; Smalley v. Greene, 52 Iowa, 241; Jenkins v. Temples, 39 Ga. 655; Pierce v. Fuller, 8 Mass. 223; Pierce v. Woodward, 6 Pick. 206; Perkins v. Lyman, 9 Mass. 522: Pike v. Thomas, 4 Bibb, 486; Story, Eq. Jur. § 292; 1 Add. Cont. § 272, 503; Powell, Cont. 102.

3 Diamond Match Co. v. Roeber, 9 Cent. Rep. 181, 106 N. Y. 473, 35 Hun, 421. 4Boardman v. Wheeler, 15 N. Y. Week. Dig. 325, 27 Hun, 615.