Hitchcock against Coker

JurisdictionEngland & Wales
CourtCourt of the King's Bench
Judgment Date06 February 1837
Date06 February 1837

English Reports Citation: 112 E.R. 167

IN THE COURT OF KING'S BENCH

Hitchcock against Coker

S. C. 1 N. & P. 796; 2 H. & W. 464; 6 L. J. Ex. 266. See Mallan v. May, 1843, 11 Mee. & W. 653; Elves v. Crofts, 1850, 10 C. B. 258; Tallis v. Tallis, 1853, 1 El. & Bl. 410; Gravely v. Barnard, 1874, L. R. 18 Eq. 521. Referred to, Rousillon v. Rousillon, 1880, 14 Ch. D. 363. Approved and followed, Jacoby v. Whitmore, 1883, 49 L. T. 335. Discussed, Davies v. Davies, 1887, 36 Ch. D. 365, 382. Referred to, Badische Anilin und Soda Fabrik v. Schott, [1892] 3 Ch. 451; Maxim-Nordenfelt Guns and Ammunition Company v. Nordenfelt, [1893] 1 Ch. 647; [1894] A. C. 571; Haynes v. Doman, [1899] 2 Ch. 17.

[438] in the exchequer chamber. (error from the king's bench.) hitchcock against coker. Monday, February 6th, 1837. 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 168 HITCHCOCK V. COK.EK 6 AD. * E. 489. 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 5001. as liquidated damages. Allegation of mutual promises to perform the agreement; arid that defendant exercised the trade within T. Breach, non-payment of 5001. Verdict for plaintiff, on non-assurapsit. 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 shewn 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. [S. C. 1 N. & P. 796; 2 H. & W. 464; 6 L. J. Ex. 266. See Mallan v. May, 1843, 11 Mee. & W. 653; Elves v. Crofts, 1850, 10 C. B. 258; Talks v. Tallis, 1853, 1 El. & Bl. 410; Gravely v. Barnard, 1874, L. E. 18 Eq. 521. Referred to, Rousillon v. Rousillm, 1880, 14 Ch. D. 363. Approved and followed, Jacoby v. Whitmare, 1883, 49 L. T. 335. Discussed, Dames v. Dames, 1887, 36 Ch. D. 365, 382. Eeferred to, Badische Anilin und Soda Fabrik v. Schott, [1892] 3 Ch. 451'; Maxim-Nordenfelt Guns and Ammunition Company v. Nordenfelt, [1893] 1 Ch. 647; [1894] A. C. 571; Haynes v. Doman, [1899] 2 Ch. 17.] 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 trade, at a certain annual salary, upon condition (amongst other 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 [439] 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 executor's, &c., should or would, on demand, pay plaintiff, his executors, &c., 5001., 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 January 1835, demanded of defendant the said 5001., 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 5001., whether the 5001. in the agreement mentioned was to be considered as liquidated damages or a penal sum. In Easter term, 1835, Erie obtained a rule, in the Court of King's Bench, to shew cause why judgment should not be arrested. Bompas Serjt. and Crowrler shewed cause in Easter term last (a). The agreement recites that the plaintiff [440] had taken the defendant in consideration of his performing the agreement; and then there are mutual promises to perform, which are (a) April 30, 1836, before Lord Deuman C.J., Littledale, Patteson, and Coleridge Js, 6 AD. ft E. 441. HITCHCOCK V. COKEE 169 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 eases are collected in Com. Dig. Trade (D, 3), and in note (1) to Hunlocke v. Blacklowe (2 Wms, Saund. 156). The leading case is Mitchel v. Reynolds (i)1. There a bond not to carry on the trade of a baker within a parish was held good ; and Parker C.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 IVickens v. Evan* (3 Y. & J. 318), parties mutually agreed to abstain from interfering with each other in large districts of England, and it was held good. In Homer v. Graves (7 Bing. 735), an agreement not to practise as a dentist within 100 miles of York, without the plaintiffs consent, while the plaintiff should be practising aa a dentist, waa 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 probablv be construed aa a personal contract, expiring [441] 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 which have been held good were in this form. In Davis v. Mason (5 T. E. 118), 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(b)2, or in Hayward \. Young (2 Chitt. 407), where the restraint extended over twenty miles. In Young v. Timmins (1 C. & J. 331. 1 Tyrwh. 226), the restraint was held to be bad, as being without adequate...

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