Mallan and Another v May
| Jurisdiction | England & Wales |
| Judgment Date | 05 June 1843 |
| Date | 05 June 1843 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 967
EXCHEQUER OF PLEAS.
S. C. 12 L. J. Ex. 376; 7 Jur. 536. Applied, Elves v. Crofts 1850, 10 C. B. 241; Tallis v. Tallis, 1853, 1 El. & Bl. 301; Haynes v. Doman, [1899] 2 Ch. 13. Followed, Green v. Price, 1853. 13 M. W. 695. Referred to, Collins v. Locke, 1879, 4 A. C. 686; Rousillon, 1880, 14 Ch. D. 364; Davies v. Davies, 1887, 36 Ch. D; 368; Parsons v. Cotterill, 1887, 56 L. T. 841; Dowden v. Pook, [1904] 1 K. B. 45; Herbert Morris v. Saxelby, Limited, [1915] 2 Ch. 87. See further, 13 M. & W. 511.
mallan amd another v. may. Exch. of Pleas. June 5, 1843. - Covenant. By articles of agreement under seal, it was agreed that the defendant should become assistant to the plaintiffs in their business of surgeon dentists for four years ; that the plaintiffs should instruct him in the business of a surgeon dentist, and that after the expiration of the term, the defendant should not carry on that business in London or in any of the towns or places in England or Scotland where the plaintiffs might have been practising before the expiration of the said service. The declaration alleged as breaches ; first, that after the term, the defendant carried on the said business in London ; secondly, that the plaintiffs had, during the said term, carried on business in Great Russell Street, Bloomabury ; yet the defendant, after the term, carried on the said business in the same place. Plea to the first breach, that London was a large and populous district, containing 1,500,000 inhabitants, and that the stipulation in the agreement was an undue, unreasonable, and unlawful restriction of trade. Plea to the second breach, that, before tbje expiration of the service, the plaintiffs had practised in very many towns in England, and amongst others, London, Preston, Oswestry, &c., and that divers of the said towns were distant from each other 150 miles ; wherefore the said stipulation was an unreasonable restriction of trade, and the said agreement, as to so much, was wholly void. - Held, that the first plea was bad, as the covenant not to practise in London was valid, the limit of London not being too large for the profession in question ; and that the latter part of it was also bad, for attempting to put in issue matter of law, viz. the reasonableness of the restriction. - Semble, that in considering the question of restriction, the populousneas of particular districts ought not to be taken into consideration. Held, secondly, that the stipulation as to not practising in towns where the plaintiffs might have been practising during the service, was an unreasonable restriction, and therefore illegal and void : but that the stipulation as to not practising in London was not affected by the illegality of the other part. - Every restraint of trade which is larger than what is required for the necessary protection of the party with whom the contract is made, is unreasonable and void, as injurious to the interests of the public, on the ground of public policy. [S. C. 12 L. J. Ex. 376 ; 7 Jur. 536. Applied, Elves v. Crofts, 1850, 10 C. B. 241 ; Tallis v. Tallis, 1853, 1 El. & Bl. 301 ; Hayms v. Dmmn, [1899] 2 Ch. 13. Followed, Green v. Price, 1845, 13 M. & W. 695. Referred to, Collins v. Locke, 1879, 4 A. C. 686 ; Rousttlm v. Eousillon, 1880, 14 Ch. D. 364 ; Da-vies v. Davies, 1887, 36 Ch. D. 368; Parsons v. Cotterill, 1887, 56 L. T. 841 ; Dowden v. Pook, [1904] 1 K. B. 45 ; Herbert Morris v. SaxMy, Limited, [1915] 2 Ch. 87. See further, 13 M. & W. 511.] Covenant The declaration stated, that, on &c., by certain articles of agreement then made and entered into by and between the plaintiffs of the one part, and the defendant of the other part, [profert], it was mutually agreed [654] and declared by and between the said parties thereto, firstly, that the defendant should thenceforth be and become assistant to the plaintiffs in their business of surgeon dentists, for and during the term of four years, computed from the date of the said articles, if both the 9J68 MALLAN V. MAY 11RL&W.655. parties should so long live, provided the defendant should conduct himself properly and to the satisfaction of the plaintiff's in transacting the said business ; secondly, that the defendant should and would, during the said term of four years, aid and assist in the said business in a proper manner, and to the best of his skill and ability; thirdly, that the plaintiffs should and would, during the said term, instruct the defendant in the said business of a surgeon dentist, to the best of their ability ; and that they would, during the ssiid term of four years, at their own expense, find and provide for the defendant good and sufficient meat, drink, and lodging; fourthly, that, after the expiration of the said term of four years, the defendant should not nor would either directly or indirectly, without the consent in writing of the plaintiff's, carry on, or be concerned as principal or assistant or agent, or in any other capacity, in the profession o{ a surgeon dentist or any branch thereof, in London or any of the towns or places in England or Scotland, where the plaintiff's, or the defendant on their account, might have been practising before the expiration of the said service, and should not in any manner at any time make any use whatever of the names of the plaintiff's, or either of them, on his cards, plates, or advertisements, or otherwise howsoever, having reference to or containing any statement of his former connexion with the plaintiffs, or otherwise howsoever; and for the due performance of the stipulations contained therein, in the said fourth article thereof, on the part of the defendant, he the defendant did thereby bind himself, his heirs, executors, and administrators, to the plaintiff's, their executors and administrators, in the sum of 500, to be paid to the plaintiffs, their executors and administrators, by the defendant, his executor's or administra-[655]-tors on any breach or default in performance of the said stipulations, and the same to be recovered as and for liquidated or assessed damages; provided always, and it was expressly understood and agreed, that the defendant should not be liable for any breach of the said stipulation thereinbefore contained, for carrying on such business in any such places as aforesaid, not therein expressly named, before he should know that the place where he should be so doing business was prohibited by the said articles, or he should have received notice from the plaintiffs or one of them, that the same was a prohibited place : And the plaintiffs say, that the said period of four years elapsed before the commencement of this suit; and that the plaintiffs did, to wit, during the aaid term, carry on the said profession in London, and did, after the expiration of the said term, to wit, thence to the commencement of this suit, carry on the said profession; and the plaintiffs say, that the defendant did, in pursuance of the said articles, to wit, on the 25th day of December, 1835, become and be an assistant to the plaintiffs in their said business of surgeon dentists, and so continued, to wit, during the said...
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