so in the case of Born v. Horstmann, 5 L. R. A. 577, 80 Cal. 454, where it was held that a bequest to testator's daughters which provides that in case either of them shall become a widow, or otherwise become lawfully separated from her husband, she shall receive her share of the property absolutely, instead of the income, which is given to her while she remains a wife, is not void as against public policy on the ground of encouraging the daughters to live separate or be divorced from their husbands.

In that case the condition could not be complied with except by a legal separation, and for causes found by a court of justice to be sufficient. This being so, there was nothing unlawful in the condition. It is true it may be said that it would have a tendency to induce the wife to assert her legal right to a divorce and separation, and that but for such inducement such right might have been waived, but it can hardly be said that it is against public policy to attach to a legacy such a condition as will tend to induce a legatee to do a lawful act in a lawful way.

The precise question presented here has been before the Supreme Court of Vermont, in which the will provided that the legatee should have the income of the estate, and such further sums as her wants might demand, so long as she remained the wife of I. A. Thayer; but if she was "left a widow, or for any cause should cease to be the wife of said Thayer," the whole estate should be given to her. In that case the court said: "The ground upon which it is claimed that the provision of the will violates public policy is that it furnishes an inducement to the wife to become the widow of her husband, or to separate herself from him in such a manner that she would cease to be his wife. The appellants, to sustain this claim, rely upon the rule as stated in 2 Redf. Wills, 293; 1 Story, Eq. Jur. 291, and the case of Conrad v. Long, 33 Mich. 78.

"The cases cited in support of the rule laid down in Redfield and Story, it will be found on examination, do not sustain the rule as here sought to be applied. They are generally cases in which an inducement was directly held out to encourage a voluntary separation of husband and wife, and where the intent to encourage such a separation could be found in the language employed in making the bequest. They are none of them so sim

ilar in their facts to the case at bar that they can be considered authorities in it. The first object is to ascertain, if possible, what the intention of the testatrix was; and we find no difficulty in reaching the conclusion that it was to have her estate disposed of just as it has been by the probate court. It was a wise and prudent provision to make for her daughter. While she should remain a wife, her husband would be under obligation to support her, and hence the income only was absolutely left her during the continuance of that relation; but when she should cease to be a wife, and so become dependent upon her own resources, it was just and wise to provide that she should have the entire estate." 1

Not only may there be a good and sufficient reason, as stated in the opinion cited, for providing that the legatee shall not have the bulk of the property until she is deprived of the support of a husband, but there may be the best of reasons for placing the same in such condition that she cannot be improperly induced by a worthless or profligate husband to squander it, while she continues to be his wife, and, it may be, under his influence and control. Such a condition in a will is not only valid, but under certain circumstances it may be just and commendable.'

'See Thayer v. Spear, 1 New Eng. Rep. 356, 58 Vt. 327; Buck v. Hughes, 127 Ind. 46.

Clark v. Fosdick, 6 L. R. A. 132, 118 N. Y. 7.

11

CHAPTER VIII.

CONTRACTS IN RESTRAINT OF TRADE.

§31. Excluding One from Pursuing His Trade or Employment. 32. Contracts in General Restraint of Trade are Void.

33. Contracts Imposing Limited Restraints Territorially as a Condition of Employment.

34. Territorial Limitations Sustained-Distance, how Determined -Instances.

35. Limit of State Lines.

36. Territorial Limitations Held too Restrictive-Instances.

37. Limitations in Regard to Time.

38. Brewers' Contracts.

39. Limitations Imposed on Seller to Protect Purchaser of Business or Stock.

40. Sale of Discovery.

41. Monopoly Secured to a Patent Right.

§31. Excluding One from Pursuing His Trade or Employment. The decision in Mitchel v. Reynolds, 1 P. Wms. 181, Smith's Leading Cases, vol. 1, pt. 11, 508, may be regarded as the first announcement of the rule in relation to the invalidity of contracts in restraint of trade. The rule was then adjusted to existing conditions and to the state of social and commercial life.

The object of government, as interpreted by the judges, was not to interfere with the free and independent right of man to dispose of his property or of his labor; it was to guard society, of which he was a member, from the injurious consequences of his agreements, whether they would arise from his own improvidence in bargaining away his means of gaining a livelihood, or in the deprivation to society of the advantages of competition in skilled labor.'

The attempt on the part of the law was to leave the party free to contract in regard to his own labor and yet, consistent with that freedom, to prevent injurious results to the public from loss of the avails of labor, with regard to which he had contracted.

In Bishop v. Palmer, 6 New Eng. Rep. 129, 146 Mass. 469, Oregon Steam Nav. Co. v. Winsor, 87 U. S. 20 Wall. 64, 22 L. ed. 315; Skrainka v. Scharringhausen, 8 Mo. App. 522; Weller v. Heisce, 10 Hun, 431; Bishop v. Palmer, 6 New Eng. Rep. 129, 146 Mass. 469; Alger v. Thacher, 19 Pick. 51.

the contract contained inter alia, the following provisions: "And the said party of the first part, hereby, for himself, his executors, administrators and assigns, covenant, etc., that for the period of five years he will not continue in or carry on the business of manufacturing or dealing in bed-quilts or comfortables, or of any business of which they form a part; that he will not enter into the cotton waste business in the city of Fall River, or influence others to do so, or make any bid therefor or induce others to do so." The first restriction was held clearly illegal, it being a general agreement, without any limitation of space, that during the period of five years he will not directly or indirectly continue in, carry on or engage in the business of manufacturing or dealing in certain articles of commerce.

So a contract was held void if it exclude the obligor from engaging in a useful trade as an iron founder, everywhere and for all time.'

An agreement not to engage for eight years in the manufacture of a certain yeast powder, nor in any branch of the yeast business, is unlimited and void; but a contract unlimited territorially, save by the words "so far as the law allows," is not void as being in conflict with public policy, nor as being too uncertain in its terms to be capable of being enforced. Such a covenant is to be construed as providing for a restraint to the full extent that the rule, as enforced by the courts, will allow a person to contract against his right of trading in a particular business, and will be given effect so as to secure to the covenantee the full benefit of that which he has purchased from the covenantor. Such a contract is transferable, with the assignment of the business to aid which it was made.' The courts will enforce such contracts where they 'Alger v. Thacher, 19 Pick. 51, 31 Am. Dec. 119. See Perkins v. Clay, 54 N. H. 519; Whitney v. Slayton, 40 Me. 230; Long v. Towl. 42 Mo. 549; Ward v. Byrne, 5 Mees. & W. 562; Taylor v. Blanchard, 13 Allen, 370; Dean v. Emerson, 102 Mass. 480; Allsopp v. Wheatcroft, L. R. 15 Eq 59; Morse T. D. & M. Co. v. Morse, 103 Mass. 73; Davies v. Davies, L. R 36 Ch. Div. 359, 381; Avery v. Langford, Kay, 663, 667, 668; 2 Pars. Cont. 748, note z; Smith v. Western U. Teleg. Co. 11 Fed. Rep. 10, note; Sharp v. Whiteside, 19 Fed. Rep. 161, note; McCaull v. Broham, 16 Fed. Rep. 37, 42, note; Homer v. Ashford, 3 Bing. 322; Mallan v. May, 11 Mees. & W. 653; Mitchel v. Reynolds, 1 P. Wis. 181.

Callahan v. Donnolly, 45 Cal. 152, 13 Am. Rep. 172.

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

Hedge v. Lowe, 47 Iowa, 137; Guerand v. Dandelet, 32 Md. 561; Gompers v. Rochester, 56 Pa. 194.

are reasonable and restrain all attempts to evade the restriction;' but an agreement not to sell milk in a town is not violated by selling to another residing outside the town, with knowledge merely that the purchaser intends to retail the milk within the town.'

The fact that two men had been engaged as rivals in manufacturing an article for domestic use will not prevent one of them from giving up the independent manufacture, and uniting as a partner with the other for a term of years, the price of the manufactured article being fixed in the contract of partnership."

The withdrawal of labor from a special business within a limited locality is therefore sustained; under this theory the law of partnership exists.*

Trade with a newly discovered line of coast may be limited by contract to the actual business prospects for the opening of intercourse profitably.

A store-keeper may contract with a manufacturer that the latter will induce his workmen to trade with the merchant, on condition of his paying the manufacturer 8 per cent on all sales to such employés; but it has been held that such a contract, by which the lessee of a coal mine, as part of the rent of the mine, contracted to use his efforts to control the patronage of his employés and their families, in favor of the lessor, and that the lessee should refuse to recognize any orders given upon him by any employé upon any other merchant for goods purchased from them, nor would he give any order, due-bill or evidence of indebtedness transferable to such other store-keeper for goods, was void as in restraint of trade, injurious to the employés and tending to extortion, oppression, and to create a monopoly.'

32. Contracts in General Restraint of Trade are Void.Contracts in general restraint of trade are void, unless natural and 'Butler v. Burleson, 16 Vt. 176; Treat v. Shoninger Melodeon Co. 35 Conn. 543; Duffy v. Shockey, 11 Ind. 70; Smith v. Martin, 80 Ind. 260; Whitney v. Stayton, 40 Me. 224; Hankinson's App. 78 Pa. 196; Cook v. Johnson, 47 Conn. 175; Richardson v. Peacock, 28 N. J. Eq. 151.

Smith v. Martin, 80 Ind. 260.

3Dolph v. Troy Laundry Mach. Co. 28 Fed. Rep. 553.

*Cooper v. Tribill, 3 Campb. 286, note; Catt v. Tourle, L. R. 4 Ch. 654.