Tabor v. Blake

Smith, J. The defendant’s. agreement with the plaintiffs was, that neither he nor Allen would, for themselves or either of them, open or cause to be opened a grocery, billiard saloon, or eating saloon, for trade, in the village of Woodsville. The referee has found that the business conducted since May, 1880, has been the business of Mrs. Blake, and that whatever connection the defendant has had with it has been that of her servant or agent. The issue before the referee was, whether the defendant was in good faith the agent merely of his wife, conducting a business that belonged to her, or whether, under color of acting as her servant, he was in fact transacting the business on his own account and in fraud of his agreement with the plaintiffs. There was evidence from which the referee might have found the latter to be the fact. His finding depended largely upon the degree of credit to which the witnesses were entitled. He has found that the business belonged to the wife, and that the defendant acted merely as her agent. His finding upon this question is conclusive. The husband may act as agent for his wife. Albin v. Lord, 39 N. H. 196; Hall v. Young, 37 N. H. 134, 146 ; Hutchins v. Colby, 43 N. H. 159, 160. She may lease her land to her husband. Albin v. Lord, supra. She may be charged as his trustee for a debt owing from herself to him. Claremont Bank v. Clark, 46 N. H. 134. She may maintain an action against him for money lent. Clough v. Russell, 57 N. H. 279; Bank v. Clark, supra. The only limitation upon her holding property to her own use is, that its acquisition be not occasioned by payment or pledge of the property of her husband (G. L., c. 183, s. 1) ; and the only limitation upon her power to contract is, that no contract or conveyance by her of property held by her in her own right as surety or guarantor for her husband, nor any undertaking by her for him or in his behalf, shall be binding on her. G. L., c. 183, s. 12. It being lawful for the defendant to act as agent for his wife, the question upon this branch of the case is, whether the defendant, by conducting the business of an eating saloon as agent for his wife, has violated his agreement with the "plaintiffs. Has he, by acting as the servant of another in the business in question, opened or caused to be opened a billiard or eating saloon for himself ? There is no suggestion or evidence outside of the contract that the contract is not what the parties actually agreed to, and there is no *89 prayer in the bill for a reformation of the contract. By opening a saloon was intended not merely the entering upon the saloon business, but the continuing of the business after it had commenced. The object of the parties was, to prevent any loss of custom to the plaintiffs from the competition of the defendant in the same business; and their contract set forth the special manner in which competition was not to be instituted by the defendant. Neither of the obligors (the defendant and Allen) was to engage in the business “for themselves or either of them.” “ Or for any other person ” is a restriction that would naturally have been added’if it had been intended. The contract in restraint of trade did not forbid the defendant to engage in the business as agent or servant of any other person than Allen. Eastern Express Co. v. Meserve, 60 N. H. 198. Several minor exceptions were raised by the plaintiffs at the hearing. They relate principally to the admission or exclusion of testimony, and have all been carefully considered. The principles involved are so well settled that we do not think any of them require discussion or special mention. Bill dismissed. All concurred.