Bishop v. Palmer

C. Allen, J. The defendants’ promise which is declared on was made in consideration of the sale and delivery of the business, plant, property, and contracts of the plaintiff, and of his faithful performance of the covenants and agreements contained in the written instrument signed by the parties. The parties made no apportionment or separate valuation of the different elements of the consideration. The business, plant, property, contracts, and covenants were all combined as forming one entire consideration. There is no way of ascertaining what valuation was put by the parties upon either portion of it. There is no suggestion that there was any such separate valuation, and any estimate which might now be put upon any item would not be the estimate of the parties. It is contended by the defendants that each one of the three particular covenants and agreements into which the plaintiff entered is illegal and void, as being in restraint of trade. It is sufficient for us to say that the first of them is clearly so ; it being a general agreement, without any limitation of space, that for and during the period of five years he will not either directly or indirectly continue in, carry on, or engage in the business of manufacturing or dealing in bedquilts or comfortables, or of any business of which that may form any part. Thus much is virtually conceded by the plaintiff, and so are the authorities. Taylor [474] v. Blanchard, 13 Allen, 370. Dean v. Emerson, 102 Mass. 480. Morse Twist Brill Co. v. Morse, 103 Mass. 73. Alger v. Thacher, 19 Pick. 51. Oregon Steam Navigation Co. v. Winsor, 20 Wall. 64. Davies v. Davies, 36 Ch. D. 359. 2 Kent Com. 466, note e. Met. Con. 232. Two principal grounds on which such contracts are held to be void are, that they tend to deprive the public of the services of men in the employments and capacities in which they may be most useful, and that they expose the public to the evils of monopoly. Alger v. Thacher, ubi supra. The question then arises, whether an action can be supported upon the promise of the defendants, founded upon such a consideration as that which has been described. As a general rule, where a promise is made for one entire consideration, a part of which is fraudulent, immoral, or unlawful, and there has been no apportionment made or means of apportionment furnished by the parties themselves, it is well settled that no action will lie upon the promise. If the bad part of the consideration is not severable from the good, the whole promise fails. Robinson v. Green, 3 Met. 159, 161. Rand v. Mather, 11 Cush. 1. Woodruff v. Wentworth, 133 Mass. 309, 314. Bliss v. Negus, 8 Mass. 46, 51. Clark v. Ricker, 14 N. H. 44. Woodruff v. Hinman, 11 Vt. 592. Pickering v. Ilfracombe Railway, L. R. 3 C. P. 235, 250. Harrington v. Victoria Graving Dock Co. 3 Q. B. D. 549. 2 Chit. Con. (11th Am. ed.) 972. Leake Con. 779, 780. Pollock Con. 321. Met. Con. 247. It .is urged that this rule does not apply to a stipulation of this character, which violates no penal statute, which contains nothing malum in se, and which is simply a promise not enforceable at law. But a contract in restraint of trade is held to be void because it tends to the prejudice of the public. It is therefore deemed by the law to be not merely an insufficient or invalid consideration, but a vicious one. Being so, it rests on the same ground as if such contracts were forbidden by positive statute. They are forbidden by the common law, and are held to be illegal. 2 Kent Com. 466. Met. Con. 221. 2 Chit. Con. 974. White v. Buss, 3 Cush. 448, 450. Hynds v. Hays, 25 Ind. 81, 36. It is contended that the defendants, by being unable to enforce the stipulation in question, only lose what they knew or were [475] bound to know was legally null; that they have all that they supposed they were getting, namely, a promise which might be kept, though incapable of legal enforcement; and that if they were content to accept such promise, and if there is another good and sufficient consideration, they may be held upon their promise. But this argument cannot properly extend to a case where a part of an entire and inseparable consideration is positively vicious, however it might be where it was simply invalid ; as in Parish v. Stone, 14 Pick. 198. The law visits a contract founded on such a consideration with a positive condemnation, which it makes effectual by refusing to support it, in whole or in part, where the consideration cannot be severed. The fact that the plaintiff had not failed to perform his part of the contract does not enable him to maintain his action. .An illegal consideration may be actual and substantial and valuable; but it is not in law sufficient. The plaintiff further suggests that, if the defendants were to sue him on this contract, they could clearly, so far as the question of legality is concerned, maintain an action upon all its parts, except possibly the single covenant in question. Malian v. May, 11 M. & W. 653. Green v. Price, 13 M. & W. 695; S. C. 16 M. & W. 346. This may be so. If they pay to the plaintiff the whole sum called for by the terms of the contract, it may well be that they can call on him to perform all of his agreements except such as are unlawful. In such case, they would merely waive or forego a part of what they were to receive, and recover or enforce the rest. It does not, however, follow from this that they can be compelled to pay the sum promised by them, when a part of the consideration of such promise was illegal. They are at liberty to repudiate the contract on this ground; and, having done so, the present action founded on the contract cannot be maintained; and it is not now to be determined what other liability the defendants may be under to the plaintiff, by reason of what they may have received under the contract. Judgment affirmed.