John Tallis against Frederick Tallis
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1853 |
| Date | 01 January 1853 |
| Court | Court of the Queen's Bench |
English Reports Citation: 118 E.R. 482
COURTS OF QUEENS BENCH, AND THE COURT OF EXCHEQUER CHAMBER.
S. C. 22 L. J. Q. B. 185; 17 Jur. 1149; 1 W. R. 114. Considered and applied, Rousillon v. Rousillon, 1880, 14 Ch. D. 364. Adopted, Swaine v. Wilson, 1889, 24 Q. B. D. 261. Referred to, Maxim Nordenfelt Guns and Ammunition Company v. Nordenfelt, [1893] 1 Ch. 648; [1894] A. C. 567. Considered and approved Dowden v. Pook, [1904] 1 K. B. 51.
hn tallis against frederick tallis. 1853. A declaration in covenant recited that plaintiff and defendant had been partners aa publishers of books, and that part of their trade, called the Canvassing Trade, consisted in publishing 7 to; books in numbers, and employing travellers to sell such books by canvassing for -1^5 purchasers. By indenture, dissolving the partnership, it was agreed that plaintiff should retain the whole of the partnership stock, and should indemnify defendant against all liabilities, and pay him a large sum of money. Defendant (inter alia) covenanted not directly nor indirectly to be concerned in the Canvassing Trade in London or within 150 miles of the General Post Office, nor in Dublin or Edinburgh or within fifty miles of either, nor in any town in Great Britain or Ireland in which plaintiff or his successors might at the time have an establishment, or might have had one within the six months preceding. Breaches : that defendant was engaged in the trade within 150 miles of the General Post Office, and also in Manchester and Liverpool, in which towns plaintiff, at the time of the breaches, had establishments. Pleas, to both sets of breaches : that there were numerous works which plaintiff did not publish, and had no intention of publishing, and that many such might be published with advantage to the public, by defendant, and without injury to plaintiff: that the Canvassing Trade applied to all such books ; and that the restraint, as to the Canvassing Trade as applicable to such works, was unreasonable : verification. Demurrer (amongst other grounds), because the plea referred matter of law to the jury. - Held : That the declaration was good, it not appearing that the restraint was unreasonable. Held, also, that the pleas were bad in substance, as the facts disclosed did not shew that the restraint was unreasonable. Qussre whether, if the facts had so shewn, the pleas would have been bad in form. [S. C. 22 L. J. Q. B. 185; 17 Jur. 1149; 1 W. R. 114. Considered and applied, Souiillon v. Bmisillon, 1880, 14 Ch. D. 364. Adopted, Swaine v. Wilson, 1889, 24 Q. B. D. 261. Referred to, Mamm Nordenfdt Guns and Amanunitim Company v. Naidenfelt, [1893] 1 Ch. 648; [1894] A, C. 567. Considered and approved, Dowden v. Pook, [1904] 1 K. B. 51.] Covenant. The declaration recited that plaintiff and defendant, "for a long space of time, to wit," &c,, " before the making the indenture thereinafter mentioned, carried on the trade or business of publishers of books and other publications in copartnership, (a) Free v. Burgoyne, 5 B. & C. 400 ; 6 B. & C. 538. lfL.HK.tn. TALLIS V. TALLIS 483 and, among other parts and branches of the said trade or business, a certain part or branch thereof known and distinguished as the Canvassing Trade; which said part or branch consisted in printing and publishing works and books in different numbers, parts or divisions, some of which works and books consisted of the works of deceased authors in which works copyright had ceased ; and employed canvassers or persons to go from house to house to solicit and obtain purchasers and customers for the same. And plaintiff and defendant, during the said period, were engaged in the said Canvassing Trade in and throughout the different cities, towns and places [392] in Great Britain and Ireland ; and also plaintiff and defendant, during the said period, were wont and accustomed to have depdts for their said books and publications, and to employ persons as their agents for the purpose of carrying on, and by means of such agents carried on, their said trade or business of publishers in very many, to wit thirty, cities, towns and places in Great Britain and Ireland, very many thereof, to wit twenty-five, being in England and Wales at a greater distance than one hundred and fifty miles from the General Post Office in London, and others thereof, to wit five, being in Scotland and Ireland, respectively, at a greater distance than fifty miles from the cities of Edinburgh and Dublin respectively : which said agents not only sold and disposed of the said books and publications so published by plaintiff and defendant, but provided and supplied the said canvassers with the said works and publications, and superintended them in their canvass; and a part of the property of the said partnership, mentioned in the said indenture and retained by plaintiff as hereinafter mentioned, consisted of works or publications provided for and intended to be sold by plaintiff and defendant as such copartners in the said part or branch called the Canvassing Trade, throughout Great Britain and Ireland, and plates, stereotypes and other materials for the printing and illustrating of such works and publications; and also in part of books and publications in the possession and custody of the said several agents for sale by them as such agents for plaintiff and defendant, as snch copartners as aforesaid, and for supplying the said canvassers on their account. And thereupon, to wit on," fec., "by a certain indenture made between the plaintiff of the one part and the defendant of the other part" (profert), [393] after reciting that the plaintiff and defendant had, for about seven years then last past, carried on the trade or business of publishers in copartnership upon equal terms, and that it had been agreed between the said parties that the said partnership should be dissolved as from the 31st day of December then last, upon certain terms therein particularly mentioned, and that, upon making the payment of 25001., the said plaintiff should retain the whole of the partnership property and should indemnify the defendant from all debts due from the said firm or partnership, including a certain debt due to the estate of one John Tallis, deceased, which last mentioned debt was claimed and demanded as being and consisting of a sum of 15,2121. 14s. 7|d.; and that the plaintiff had, before the execution of the said indenture, paid to the defendant the said sum of 25001., and, by a warrant of attorney and certain promissory notes, had secured the payment to the defendant by the plaintiff of the sum of 77501., by twenty-three equal instalments of 3251., and one of 2751., on every 17th day of May, 17th day of August, 17th day of November, and the 17th day of February, thenceforth ensuing, until the whole of the said sum should be paid and interest thereon after the rate of five pounds per cent, per annum at certain periods therein mentioned : which said sum of 77501. was thereby admitted by him, the defendant, to be the whole of the interest, with the said sum of 25001. so paid as aforesaid, of him the said defendant in the said partnership: and that the said parties, for the better and more full explanation and manifestation of their arrangements and agreements in the premises, and corroborating and confirming the same, and carrying the same into full and complete effect, had agreed to enter into the covenants [394] and engagements on their parts thereinafter expressed arid contained : the plaintiff, amongst other things, thereby covenanted with the defendant that he would pay the said several promissory notes, and also, "on or before the 15th day of January in each year, pay to the defendant, his executors, administrators or assigns, interest up to the 31st day of December in each and every year thenceforth ensuing for the said balance or sum of 77501., or such part thereof as from time to time thereafter should remain due and unpaid;" "and that the plaintiff, or his heirs, executors or administrators, would also 484 TALUS V. TALLIS 1 BLJ* BL'S9S. pay, satisfy and discharge, in exoneration of the said defendant, and his heirs, executors or administrators, the rent or rents then or thereafter to accrue due or payable in respect of the certain leasehold premises therein mentioned, and all debts then owing by, or liabilities already incurred by, them jointly, or either of them, on account of or in relation to or for the purposes of the said copartnership business, and also the aforesaid alleged debt so claimed to be due to the estate of the said John Tallis deceased, and consisting of the particulars thereinbefore recited; and that, in case the plaintiff, his executors, administrators or assigns, should associate himself or themselves in partnership with any person or persons for the purpose of carrying on business with or by means of the said joint or copartnership assets, or the assets which might be acquired by him or them in substitution for the same, then the plaintiff, his heirs, executors or administrators, should and would give such incoming partner or partners full notice of the said indenture, and procure such person or persons to assume and adopt in writing the then liabilities of the plaintiff, or his heirs, executors or administrators, to the defendant, [395] his executors, administrators or assigns, in virtue at those presents and the aforesaid promissory notes and warrant of attorney, at the commencement of any such new partnership...
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