Eastern Express Co. v. Meserve

Smith, J. If there has been any breach of the defendants’ covenants, it is in the third particular stated in the agreement. Did Meserve, by entering into the service of Brackett at a stipulated price by the day, violate his agreement “not to do any express business ” over any other road running to a place on the line of the plaintiffs’ businessjhJ Contracts in general restraint of trade are void (Mitchel v. Reynolds, 1 P. W. 181; 1 Sm. L. C. 171*, 3d Am. ed. 367), but are upheld if limited in time or are partial in their operation, and supported by a sufficient consideration. Perkins v. Clay, 54 N. H. 518; Taylor v. Blanchard, 13 Allen 370. The law does not look with favor upon such contracts, because they *199 tend to discourage industry and enterprise, prevent competition, and expose the public to the evils of monopolies (Alger v. Thacher, 19 Pick. 51); for which reasons they are construed strictly. The intention of the parties, as gathered from the written instrument, seems to have been that the defendants should no longer carry on the express business on their own account over the plaintiffs’ route, or over other roads to competing points on their line. It excludes them from interest or profit in the business, but there is no stipulation excluding them from personal employment in it in the service of another; and hence we think that entering the service of another as employé merely is not engaging in or carrying on the business of expressmen within the meaning of the agreement. Harkinsorís Appeal, 78 Penn. St. 196 —8. 0., 21 Am. Rep. 9; Turner v. Evans, 2 De G. M. & G. 740; Rawlinson v. Clarke, 14 Mees. & W. 187, 191; High Inj., s. 748 ; Clark v. Watkins, 9Jur. (N. S.) 142; Allen v. Taylor, 39 L. J. Ch. 627; — see, also, note to Callahan v. Donnolly, 13 Am. Rep. 175. Meserve did not become entitled to a share of the profits, nor did he render himself liable to pay any part of the, losses of the Brackett Express Company, nor did he, become responsible as a carrier for the loss of property. It does not appear that he was anything more than the merest servant of Brackett, or that any damage was sustained by the plaintiffs by reason of his engaging in Brackett’s service. Me did not become an expressman or common carrier, but the servant of one ; and we do not think he can be said to have done any express business, within the meaning of the contract, from or to a competing point on the plaintiffs’ lino of business. Judgment for the defendants. Clark, J., did not sit: the others concurred.