Patrick McIntyre the Elder and Another v Belcher
| Jurisdiction | England & Wales |
| Judgment Date | 05 June 1863 |
| Date | 05 June 1863 |
| Court | Court of Common Pleas |
English Reports Citation: 143 E.R. 602
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 32 L. J. C. P. 254; 8 L. T. 461; 10 Jur. N. S. 239; 11 W. R. 889. Referred to, In re English and Scottish Marine Insurance Company, 1870, L. R. 5 Ch. 740. Approved, but distinguished, Rhodes v. Forwood, 1876, 1 App. Cas. 274. Distinguished, In re Railway and Electric Appliances, 1888, 38 Ch. D. 603. Referred to, Ogdens, Limited v. Nelson, [1903] 2 K. B. 296; [1904] 2 K. B. 410; [1905] A. C. 109.
602 m'intyre v. belcheb MC. B. (N. S.)655. patrick m'intyre the elder and another v. beloher. June 5th, 1863. [S. C. 32 L. J.iC. P. 254; 8 L T. 461; 10 Jur. N. S. 239 ; 1L W. K. 889. Referred to, In re. English and Scottish Marine Insurance Company, 1870, L. ti. 5 Oh. 740. Approved, but distinguished, Rhodes v. Frtrwood, 1.S76, 1 App. Gas. 274. Distinguished, In re Railway and Electric Alliances, 1888, 38 Ch. D. 603. Referred to, Ogdens, Limited v. Nehon, [1903] 2 K. B. 29(5; [1904] 2 K. B. 410 ; [1905] A. C. 109.] By;an agreement for the sale of the goodwill of a medical practice, it was stipulated that the purchaser should have delivered up to him possession of the house, and have sold to him the horse, drugs, bottles, and surgical instruments and furniture employed in the business, at the sum of 171. 5s. : and the vendors agreed with the purchaser to pay rent and taxes up to a given day, and that they would not within ten years from the date of the agreement practice, &c , at or within ten miles of the place: and the purchaser agreed tliat he would, on condition of the premises, pay the vendors for and in respect of each of the successive years ending the 31st of December, 1860, 1861, 1862, and 1863, if he should be living at the end of each respective year, one fourth part of the earnings and receipts in respect of the said practice, without any deduction for expenses,-provided the earnings and receipts in each year should amount to 3001 -In an action upon this agreement, the breach alleged was that the defendant, since the making of the agreement, and during and before the expiration of the third of the said years, to wit, the year 1862, had by his own acts and defaults wholly disabled and incapacitated himself from further carrying on the said business and from getting or obtaining any further earnings or receipts therefrom, and had never since carried on the said business or obtained any further earning-; or receipts therefrom :-Held, that it was an implied covenant in the agreement, that the purchaser would not during the four years by his wilful acts or default prevent the receipt of earnings ; and consequently that the breach .was well aesigned, The declaration stated that, by certain articles of agreement, dated the I 3th of December, 1859, the plaintiffs and the defendant agreed together that the [665] goodwill of the practice of a surgeon then lately carried on by one Patrick M'Intyre tte younger should be transferred to the defendant, who should be recommended to tfce patients ;of the said business by such usual and proper means as he should desire, and have underlet and given up to him possession of the house where such practice had been carried on, and have sold to him the horse, drugs, and bottles, and surgical instruments and furniture employed in the said business, at the sum of 171. 5s. : And the plaintiff's further agreed with the defendant to pay the rent, rates, and taxes of the said house up to the 6th of .January then next, and that the said Patrick M'Intyre should not within ten year's from the date of the said agreement practise as a surgeon and apothecary or physician at Woolpet or within ten miles from the same: And the defendant thereby agreed with the plaintiffs that he would, on condition of the premises, psjy the plaintiff for and in respect of ench of the successive years ending the 31st day of December, 1860, the 31st day of December, 1861, the 31st day of December, 1862, and the 31st day of December, 1863, if he slundd be liviny at the end of each respective yew, one fourth part of the earnings and receipts in respoct of the said practice, without any deduction for expenses, such one fourth part to be paid on or before the 1st clay of April next after the end of the year in respect of which it should be due as aforesaid : Provided always that, in case the earnings and receipts of the said defendant in respect of the said practice, without deducting any expenses, in any of the said four years, should be less [656] than the sum of 3001., then the said defendant, his executors or administrators, should not be required to jnake any payment in respect of those years...
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