A covenant not to be directly or indirectly interested in any voyage to the northwest coast of America, or in any traffic with the natives of that coast, for seven years, was held valid. In that case some weight was given to the obligation of a trust.'

A contract by a steamship corporation to purchase a competing line, which, in consideration thereof, agrees to discontinue running vessels between ports mentioned, and not to charter or sell their vessels for use on that route, and not to become in any way interested in the running of steamships between those places, is not void as in restraint of trade.'

In Oregon Steam Nav. Co. v. Winsor, 87 U. S. 20 Wall. 64, 22 L. ed. 315, the court enforced the covenant by the defendant made in the purchase of a steamship, that it should not be run or employed in the freight or passenger business in the waters of the State of California for a period of ten years; contra, where no time was fixed.'

Where the covenant is partial and not general, it will not be a good objection that it is practically unlimited as to time.*

In each particular case the surrounding circumstances are to be considered in determining whether the covenant will operate as a restraint, injurious to the public. Thus an exclusive right to lay tubing for the conveyance of oil through an extensive tract, which would practically deny this facility to others, was held to be illegal.

An agreement not to engage in a particular business in a certain town for five years, is sustained as being only a limited. restraint upon trade.'

But courts do not extend the restriction beyond its expressterms; where a land agent sold his business, with an agreement

579; Linn v. Sigsbee, 67 Ill. 75; Graselli v. Lowden, 11 Ohio St. 349; Archer v. Marsh, 6 Ad. & El. 959; Hitchcock v. Coker,6 Ad. & El. 438; Pilkington v. Scott, 15 Mees. & W. 660; Tallis v. Tallis, 1 El. & Bl. 391; Pierce v. Fuller, 8 Mass. 223; Lawrence v. Kidder, 10 Barb. 649; Palmer v. Graham, 1 Pars. Eq. Cas. 476.

'Perkins v. Lyman, 9 Mass. 522.

Leslie v. Lorillard, 1 L. R. A. 456, 110 N. Y. 519.

& Wright v. Ryder, 36 Cal. 342.

4 Ward v. Byrne, 5 Mees. & W. 548; Mumford v. Gething, 7 C. B. N. S. 317. Gibbs v. Consolidated Gas Co. 130 U. S. 396, 32 L. ed. 979.

•West Virginia Transp. Co. v. Ohio River P. L. Co. 22 W. Va. 600.

7 Washburn v. Dosch, 68 Wis. 436.

not to re-engage in the identical business in the same place for three years, after the expiration of that time he was not debarred from soliciting the agency of the same lands he had in charge when the contract was made.'

And acting on this principle it is held that an agreement not to sell milk in a particular town is not violated by selling to one residing outside the town, with knowledge that the purchaser intends to retail the milk within the town."

There are many illustrations of the application of the rule to special cases, a few of which are given below.'

§ 46. Legality of Consideration, and Reasonableness of Restriction-Questions of Law. Whether a contract is in restraint of trade or not is a question of law for the court and not a question of fact for the jury. Contracts in restraint of trade And indeed the rule

where no consideration is shown, are bad. is that where no consideration is shown or appears itself on the face of the instrument, the contract, if in fact a contract in restraint of trade, is void, although it is under seal.'

The court will not, indeed, if a consideration be shown, examine as to the sufficiency of the consideration, but whether it is a legal one.'

'Hanna v. Andrews, 50 Iowa, 462.

Smith v. Martin, 80 Ind. 260.

'See Davis v. Mason, 5 T. R. 118; Mallan v. May, 11 Mees. & W. 653; Hayward v. Young, 2 Chit. 407; Price v. Green, 16 Mees. & W. 346; Tallis v. Tallis, 1 El. & Bl. 391; Elves v. Crofts, 10 C. B. 241; Jones v. Lees, 1 Hurlst. & N. 189; Carroll v. Hicks, 10 Phila. 308; Bett's App. 10 W. N. C. 431; McClurg's App. 58 Pa. 51; Gompers v. Rochester, 56 Pa. 194; Bigony v. Tyson, 75 Pa. 157: Morse T. D. & M. Co. v. Morse, 103 Mass. 73; Dean v. Emerson, 102 Mass. 480.

Kellogg v. Larkin, 3 Chand. 133; Mallan v. May, 11 Mees. & W. 653; Horner v. Graves, 7 Bing. 743.

'Pierce v. Fuller, 8 Mass. 223, 5 Am. Dec. 102.

Gompers v. Rochester, 56 Pa. 194; Palmer v. Stebbins, 3 Pick. 188; Weller v. Hersee, 10 Hun, 431; Mitchel v. Reynolds, 1 P. Wms. 181; Mallan v. May, 11 Mees. & W. 665.

'Guerand v. Dandelet, 32 Md. 561, 3 Am. Rep. 164: McClurg's App. 58 Pa. 51; Pierce v. Fuller, 8 Mass. 223; Sainter v. Furgusson, 7 C. B. 716; Hitchcock v. Coker, 6 Ad. & El. 438; Archer v. Marsh, 6 Ad. & El. 966; Leighton v. Wales, 3 Mees. & W. 551; Pilkington v. Scott, 15 Mees. & W. 657: Tallis v. Tallis, 1 El. & Bl. 397; Lawrence v. Kidder, 10 Barb. 649; Palmer v. Graham, 1 Pars. Eq. Cas. 476; Grasselli v. Lowden, 11 Ohio St. 349; Linn v. Sigsbee, 67 Ill. 75; Jenkins y. Temples, 39 Ga. 655.

A contract in restraint of trade must have a good consideration and the restraint must be reasonable and limited.'

The reasonableness of the restriction is a question for the court.'

The authorities are numerous, and conclusively establish the law that contracts in restraint of the freedom of trade must be reasonable.'

In determining whether the contract is reasonable such a limit should be laid down as, under any circumstances, possible within the contemplation of either party, would be sufficient protection to the interests of the contracting party, and if the limit stipulated for does not exceed that, the contract should be held to be valid.'

A covenant in restraint of trade is valid if it was induced by a consideration which made it reasonable for the parties to enter therein; and the covenant will be enforced if a disregard thereof by the covenantor will work injury to the covenantee.*

Where the restraint of a party from carrying on a trade or business is larger and wider than the protection of the party with whom the contract is made can, under such circumstances, possibly require, such restraint must be considered as unreasonable in law, and the contract which would enforce it is therefore void."

Before a covenant not to practice medicine in the neighborhood

'Holmes v. Martin, 10 Ga. 503; Dunlop v. Gregory, 10 N. Y. 241; Lange v. Werk, 2 Ohio St. 520; Thomas v. Miles, 3 Ohio St. 275; Chappel v. Brockway, 21 Wend. 157; Holbrook v. Waters, 9 How. Pr. 335; Wright v. Ryder, 36 Cal. 357; Brewer v. Marshall, 19 N. J. Eq. 537; Mitchel v. Reynolds, 1 P. Wms. 181; Hitchcock v. Coker, 6 Ad. & El. 438.

2 Linn v. Sigsbee, 67 Ill. 81.

Horner v. Graves, Bing. 743; Hitchcock v. Coker, 6 Ad. & El. 438; Mallan v. May, 11 Mees. & W. 653, 664, 666; Baines v. Geary, L. R. 35 Ch. Div. 154; Davies v. Davies, L. R. 36 Ch. Div. 359, 396, 397, 398; Rousillon v. Rousillon, L. R. 14 Ch. Div. 363; Nat. Prov. Bank v. Marshall, L. R. 40 Ch. Div. 112: Diamond Match Co. v. Roeber, 9 Cent. Rep. 181-187, 106 N. Y. 473-487; Pollock, Cont. 315, 316.

4Mallan v. May, 11 Mees. & W. 653, 667; Tallis v. Tallis, 1 El. & Bl. 391. See Printing & Numerical Registering Co. v. Sampson, 32 L. T. N. S. 354, L. R.19 Eq. 462, 465.

Hodge v. Sloan, 9 Cent. Rep. 870, 107 N. Y. 244.

Hitchcock v. Coker, 6 Ad. & El. 438, 454; Ward v. Byrne, 5 Mees. & W. 548, 561; Horner v. Graves, 7 Bing. 753; Whittaker v. Howe, 3 Beav. 383.

can be enforced, evidence must show that it is reasonable under the existing facts.'

§ 47. Presumption as to Legality of Contracts in Partial Restraint of Trade.-Contracts in partial restraint of trade have been said to be presumptively void, and that such presumption can be rebutted only by showing that it was entered into for good reasons, and that the burden of showing the facts rendering the contract valid rests upon the party seeking to enforce it.'

It was said in Mitchel v. Reynolds, 1 P. Wms. 181, 191, that "whenever such contract stat indifferenter, and for aught appears, may be either good or bad, the law presumes it prima facie to be bad." But this doctrine has been disapproved in England, and it is now said that there is no "hard and fast rule" that a contract in restraint of trade, limited as to space, is invalid; but the validity depends upon the reasonableness of the contract. Indeed it is now declared that contracts involving the question of interference with trade are prima facie valid.'

§ 48. Contract in Restraint of Trade Legal in Part and Severable. Although there may be one of the stipulations in a contract which may be considered as illegal, yet this will not defeat a recovery on the other parts of the contract, when the stipulations are divisible and the consideration is not in itself illegal.

A covenant as to place, "in the county of Lehigh or elsewhere," is divisible and valid as to the county. But a court will only

'McNutt v. McEwen, 10 Phila. 112.

*Ross v. Sadgbeer, 21 Wend. 166.

See also Mandeville v. Harman, 5 Cent. Rep. 625, 42 N. J. Eq. 185. *Rousillon v. Rousillon, L. R. 14 Ch. Div. 351, following Leather Cloth Co. v. Lorsont, 21 L. T. N. S. 661, L. R. 9 Eq. 345, and disapproving Allsopp v. Wheatcroft, 27 L. T. N. S. 372, L. R. 15 Eq. 59.

'Pollock, Cont. 315; Mogul Steamship Co. v. McGregor, L. R. 21 Q. B. Div. 544, 552.

Green v. Price, 13 Mees. & W. 695; Price v. Green, 16 Mees. & W. 346;. Bank of Australasia v. Breillat, 6 Moore, P. C. 152; Mayfield v. Wadsley, 3 Barn. & C. 357, 5 Dowl. & R. 228; Kerrison v. Cole, 8 East, 231; McAllen v. Churchill, 11 Moore, 483.

Smith v. Fell, 5 Cent. Rep. 208, 113 Pa. 579; Thomas v. Miles, 3 Ohio St. 274. See Mallan v. May, 11 Mees. & W. 653; Green v. Price, 13 Mees. & W. 695, 16 Mees. & W. 346; Gelpcke v. Dubuque, 68 U. S. 1 Wall. 175, 17 L. ed. 520; Goodwin v. Clark, 65 Me. 280; Carleton v. Woods, 28 N. H. 290; Van Dyck v. Van Beuren, 1 Johns. 362; Saratoga Co. Bank v.

attempt to make a separation of the good consideration from that which is illegal in those cases where the party seeking to enforce the contract is not the wrongdoer.'

Where an act, though the result of an unlawful contract, is itself lawful, it may form the consideration for a lawful agreement, as, for instance, the actual transfer of stock, the agreement for which was illegal.'

So an agreement between former partners in an illegal business,. to defend their former agents against criminal prosecution, is not tainted by the illegality of the business.'

The general rule is that where the illegal is so interwoven with the material portion of the contract that it cannot be severed from the legal part of the covenant, the contract is altogether void. If the connection between the evil and good be such as to make the consideration an entirety, and incapable of severance, the whole promise is void; otherwise it may be upheld by the good where it can be so severed, whether the illegality be created by the statute or by the common law; the illegal or vicious part may be rejected and the lawful, reasonable and just portion retained."

Agreements in restraint of trade, whether under seal or not, may, like any other form of contract, be either indivisible or divisible. Where one part thereof is void as being in restraint of

King, 44 N. Y. 89; Leavitt v. Palmer, 3 N. Y. 19; Hook v. Gray, 6 Barb.
398; Tracy v. Talmage, 14 N. Y. 162; Leavitt v. Blatchford, 5 Barb. 9.
See Benj. Sales, § 505; Carrigan v. Lycoming F. Ins. Co. 53 Vt. 418;
Lange v.
Werk, 2 Ohio St. 519; Widoe v. Webb, 20 Ohio. St. 431; Hynds v.
Hays, 25 Ind. 31: Kimbrough v. Lane, 11 Bush, 556; Newberry Bank v.
Stegall, 41 Miss. 142; Valentine v. Stewart, 15 Cal. 387.

'Saratoga County Bank v. King, 44 N. Y. 87.

Tyler v. Tyler, 126 Ill. 525, 9 Am. St. Rep. 642.

Hutchinson v. Dornin, 23 Mo. App. 575.

4 Webb v. Allington, 27 Mo. App. 559.

'Pickering v. R. R. Co. L. R. 3 C. P. 250, citing Maleverer v. Redshaw, 1 Mod. 35; Collins v. Blantern, 2 Wils. 351; United States v. Bradley, 35 U. S. 10 Pet. 343, 9 L. ed. 448: Deering v. Chapman, 22 Me. 488; Roby v. West, 4 N. H. 285; Coburn v. Odell, 30 N. H. 540; Woodruff v. Hinman, 11 Vt. 592; Frazier v. Thompson, 2 Watts & S. 235; Raguet v. Roll, 7 Ohio, 70: Mc Bratney v. Chandler, 22 Kan. 692; Everhart v. Puckett, 73 Ind. 409; Anderson v. Powell, 44 Iowa, 20; Waite v. Jones, 1 Scott, 730; Newman v. Newman, 4 Maule & S. 66; Gaskell v. King, 11 East, 165; Wigg v. Shuttleworth, 13 East, 87; Ladd v. Dillingham, 34 Me. 316; Rose v. Truax, 21 Barb. 361; Donallen v. Lennox, 6 Dana, 91; Langdon v. Gray, 52 How. Pr. 387; Tobey v. Robinson, 99 Ill. 222.