Wallis v Day and Another
| Jurisdiction | England & Wales |
| Date | 1837 |
| Court | Exchequer |
English Reports Citation: 150 E.R. 759
EXCH. OF PLEAS.
S. C. M. & H. 222; 6 L. J. Ex. 92; 1 Jur. 73.
wallis . day and another Exch. of Pleas. 1837.-The plaintiff, by deed, sold to the defendants his trade and business as a carrier between London and Wisbech, and, in consideration of the covenants therein contained on the defendants' part, covenanted with them that he would not thenceforth, during his life, exercise the trade of a carrier, except as thereinafter mentioned ; and that he would thenceforth, during his life, faithfully serve the defendants as an assistant in the trade of a carrier : and the defendants, in consideration of the before-mentioned covenants, and of the plaintiff's faithful service as aforesaid, covenanted to pay him a certain weekly sum for his life. In an action against the defendants on this covenant:-Held, that the plaintiff's covenant to serve during his life was good in law, and that the covenant in restraint of his trade was not void, inasmuch as he was not absolutely restrained from carrying on the trade, but only from carrying it on in any other way than as an assistant to the defendants.-Quaere, whether, supposing this covenant were void, as being in general restraint of trade, the plaintiff could nevertheless have sued on the defendants' covenant to pay ? [S. C. M. & H. 222 GL.J. Ex. 92; 1 Jur. 73.] Covenant on an indenture, dated the 8th July, 1830, made between the plaintiff of the one part, and the defendants of the other part, whereby the defendants, for [274] the considerations therein mentioned, covenanted with the plaintiff to pay him for fifteen years the weekly sum of 21. 3s. lOd. The declaration alleged as a breach that there was due to the plaintiff the sum of 391. 9s. of such weekly payments, for eighteen weeks ending on the 22d October, 1836. The defendants demurred, after craving over of the indenture, by which, after reciting that the plaintiff had for many years carried on the trade of a carrier from London to St. Ives and thence to Wisbech, and had agreed with the defendants for the sale or relinquishment to them of his trade or business, on the terms and conditions thereinafter expressed ; it was witnessed, that in pursuance of the covenants, stipulations, and agreements, thereinafter contained on the part of the defendants, the plaintiff sold, assigned, and relinquished to the defendants all the good-will and interest which he, the plaintiff, had in or concerning the said trade or business as a carrier, as the same had been and then was carried on, and exercised and enjoyed by him, and all his estate and interest therein. And the plaintiff, for the considerations thereinbefore expressed, and in consideration of the covenants thereinafter contained on the part of the defendants, covenanted with the defendants, that he would not, at any time from thenceforth during the term of his natural life, either by or for himself, or for or with any other person or persons whomsoever in trust for him, or to or for his use, benefit, or advantage, set Up, exercise, or in any sort of manner howsoever use or follow the trade or business of a carrier, except as thereinafter was excepted, and that the plaintiff should and would from, thenceforth during his life well and faithfully serve the defendants as an assistant in the said trade or business of a carrier, &c. And the defendants, for the considerations before expressed, and in consideration of the covenants thereinbefore contained, and of the good and faithful service of the plaintiff as aforesaid, covenanted with the plaintiff that they would pay or cause to be paid to him, for the term [275] of fifteen years from the date thereof, the weekly sum of 21. 3s. 10d., aud for the remainder of his life, if he should be living at the expiration of the term of fifteen years, the weekly sum of 11. 8s. lOd. The indenture then contained a proviso for referring disputes touching the plaintiff's conduct to arbitration. Joinder in demurrer. The grounds of demurrer stated in the margin were, that the indenture was void as being in restraint of trade, the plaintiff being prohibited from exercising the trade during his life, and everywhere, instead of the prohibition 7!60 WALLIS V. DAY 2 M. &W. 276. being conflned to a particular district, or the line of road of the defendants, or to the period during which the defendants or either of them should continue to exercise thu trade: That it did not appear that there had been actual service rendered by the plaintiff to the defendants : and moreover, that the weekly sum being entire, and one of the considerations for the payment thereof being invalid, the contract was wholly void. Kelly, in .support of the demurrer. The covenant whereby the plaintiff engages not to exercise his trade during his life, being in general restraint of trade, is void ; and inasmuch as it forms a part of the entire consideration for the defendants' covenants, they are avoided also. It is not necessary to argue that the declaration is bad for want of an allegation that the service has been performed : the general allegation tliat the plaintiff...
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