Hopkins v Prescott
| Jurisdiction | England & Wales |
| Judgment Date | 02 June 1847 |
| Date | 02 June 1847 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 634
IN THE COURT OF COMMON PLEAS
S. C. 16 L. J. C. P. 259; 11 Jur. 562.
hopkins v. prescott. June 2, 1847. [S. C. 16 L. J. C. P. 259; 11 Jur. 562.] An agreement, whereby,-after reciting that A- had carried on the business of a law-stationer at G-., and also had been sub-distributor of stamps, collector of assessed taxes, &c. there, and that he had agreed with B. for the sale" of the said business, and of all his goodwill and interest therein, to him, for the sum of 3001.,-A., in consideration of the said sum of 3001., agreed to sell, and B. agreed to purchase, the said business of a law-stationer at G-.; and whereby it was further agreed that A. should not at any time after the 1st of March then next, carry on the business of a law-stationer at G., or within ten miles thereof, or collect any of the assessed taxes, &c., but would use his utmost endeavours to introduce B. to the said business and offices,"-is illegal and void, as being a contract for the sale of an office, within the 5 & 6 Edw. 6, c. 16, and also within the 49 Geo. 3, c. 126. Assumpsit. The declaration stated, that, on. the 8th of January, 1846, by a certain agreement then made between the plaintiff of the one part, and the defendant of 'the other part,-after reciting that the plaintiff had, for a long time past, carried on the business of a law-stationer at Gloucester, and also had been sub-distributor [579] of stamps, collector of assessed taxes, and agent for tbe Birmingham Fire Office there, from which business he had annually received, on an average of five years, the sum of 2001., and that the plaintiff, being desirous of giving up his said business, had agreed with the defendant for the sale of the same, and of all his goodwill and interest therein, to him, at and for the sum of 3001., in the manner thereinafter mentioned,-it was witnessed, that, in consideration of the sum, &$GQL', to be paid as thereinafter mentioned, the plaintiff did thereby agree to seflfaad the defendant did thereby agree to purchase, all the said business of a law-stafciarifp-so carried on by the plaintiff, -and all his goodwill and interest therein, And-iB'-fistey part and branch . thereof; and the defendant did thereby promise and 3gree;lfe,-a^4with the plaintiff, that he, the defendant, would pay and secure to the plainttffJillsf.siSd *um of 3001., with interest, by certain notes of hand, &c., payable at stated |steSft3s, and in manner therein mentioned; and it was thereby further agreed by and between the plaintiff and the defendant, that the plaintiff should not at any time 'after the 1st day of March then next, carry on the business of a law-stationer, or collect any of the assessed taxes, or accept the office of an agent to any fire or life-assurance company at Gloucester, or within ten miles thereof, but would use his utmost endeavours, at:the' expense of the defendant, to introduce him, the defendant, to the said business and offices, as by the said agreement, &c.: that, the said agreement being so made, afterwards, in consideration thereof, and that the plaintiff, at the request of the defendant, had then promised the defendant to perform the said agreement on his part, he, the defendant, undertook, and then promised the plaintiff, to perform the said agreement on his part: averment, that the plaintiff had always, from the time of making the said agreement, performed and fulfilled the same on his [580] part, and was after- (a) Suppose the rent to be payable yearly. (b) Wilde, C. J., was absent. 4C.B.581. HOPKINS -V. PRESCOTT 635 wards, to wit, on the day and year first aforesaid, and always from thence had been, ready and willing to accept and receive from the defendant the notes of hand, &c., as a security for the said 3001. and interest, in manner as in the agreement in that behalf provided, and had not at any time after the 1st of March, 1847, carried on the business of a law-stationer, or collected any of the assessed taxes, or accepted the office of an agent to any fire or life-assurance company within ten miles, &c., and had always, from the time of making the agreement, used his utmost endeavours to introduce the defendant-to the said business and offices : Breach, that, although, after the making of the agreement, and before the commencement of the suit, to wit, on the 25th of December, 1846, the sum of 501. became due and payable from the defendant to the plaintiff, according to the tenor of the agreement, yet the defendant had disregarded his said promise and agreement, and had not paid the last-mentioned sum, or any part thereof, &c.; and that, although a reasonable time in that behalf had elapsed, after the making of the agreement, and before the commencement of the suit, yet the defendant, further disregarding his said promise, had wholly neglected to secure the said sum of 501., or any part thereof, by note of hand or otherwise, &c. Second plea-that, before and at the time of making the supposed agreement and promise in the declaration mentioned, the plaintiff held, exercised, and enjoyed the office of sub-distributor of stamps, for, &c., the same then and still being an office touching and concerning the receipt of Her Majesty's revenue; and that, by the agreement so made by the plaintiff as in the declaration mentioned, he the plaintiff did unlawfully, corruptly, and against the statute in that case made and provided, agree with the defendant to receive [581] and have from him a certain sum of money, to wit, the money in the declaration mentioned, to the intent that he, the defendant, should have, exercise, ..and enjoy the last-mentioned office; and that thereby the supposed agreement was and is utterly void in law. Verification. Eeplication-that the plaintiff did not, by the agreement in the declaration mentioned, agree with the defendant to receive or have from him the sum of money in the plea mentioned, to the intent that the defendant should have, exercise or enjoy the office in the plea mentioned, modo et forma-concluding to the country. To a third plea, in terms similar to the second, substituting the words "collector of taxes," for " distributor of stamps," there was a similar replication. To these replications there was a special demurrer: but the judgment of the court turned entirely upon the sufficiency of the declaration. Hugh Hill (with whom was Badeley), in support of the demurrer. The contract declared upon'is void, and the breach of it affords no ground of action. One of the considerations which induced the defendant to agree to purchase the business in question was, the engagement, on the plaintiff's part, not to carry on the business of alaw.-statioiier at Gloucester, or within ten miles thereof; another, that the plaintiff would resign.the office of collector of assessed taxes; and a third, that the plaintiff would use his utmost endeavours to introduce the defendant to the offices before mentioned, viz., amongst others, those of collector of assessed taxes, and sub-distributor .of stamps. Now, it is perfectly clear, that, if any one provision in an agreement is in contravention of a statute, the whole contract is void. From the reign of Elizabeth to the. present time: £82] that has never been disputed. In Lee v. Coleshill (a), in debt by Lee and wife, as Executors of Smith, upon an obligation, against the defendant, as executrix.of Coleshill, her husband, "the defendant pleaded the condition to be, for the performance of covenants within a certain indenture betwixt Smith on the one part, and Coleshill on the other part, whereby Coleshill, being customer of London (by lettersfpatent) made Smith his deputy in the said office, and covenanted to surrender -tfaoSe letters-patent before a certain day, and to procure new to himself and Smith ; as also, that, if Smith died, living C., that C. should pay to the executors of Smith 3001.: and shews the .statute of 5 Edw. 6, c. 16, that all promises, bargains, and con tracts for the buying "of' divers offices (whereof this is one) shall be void ; and therefore the plaintiff demurred. Glanvil:.prayed judgment for the plaintiff; for, there be many covenants within the...
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