Hoyt v. Holly

FOSTER, J. It appears from the motion in this case that at the time of entering into the contract out of which this suit has arisen, both the parties were practising physicians in the town of Greenwich, the plaintiff at the village of Greenwich, and the defendant at Round Hill. The plaintiff, being about to leave the village and establish himself in practice in the adjoining town of Stamford, proposed to the defendant to remove from Round Hill to Greenwich village, and take the plaintiff’s place. The plaintiff agreed to recommend the defendant to his patrons and patients in the village and vicinity, and to use his influence to induce them to employ him. It was mutually understood that the plaintiff reserved the right to practice in the village and vicinity, when called on to do so. The. plaintiff removed to Stamford, and the defendant came to the village, occupying for a time the office previously occupied by the plaintiff, going into practice, and holding himself out, by advertisement and otherwise, as the successor of the plaintiff. The motion finds that the plaintiff fulfilled his part of the agreement, and this suit is brought to recover the $500, which was the consideration agreed to be paid to the plaintiff by the defendant on his part. The-judgment below was in favor of the plaintiff. This motion for a new trial rests on three grounds. 1. That the contract is void as being incapable of performance. 2. That it is void as being contrary to public' policy. 8. That it is not the sale of a good-will of a business ; the business of a professional man being a personal trust and confidence, not a subject of sale. Because the plaintiff reserved the right to practice in the locality, when called on to do so,we do not think it therefore became impossible for him to recom- : mend the defendant, and to exert his influence to induce his patients to employ him. That fact might affect the value of the recommendation; it might diminish the weight of the influence; but certainly it would not necessarily prevent the recommendation from being made, the influence from being exerted. [329] Besides, a conclusive answer to this claim is, tlie finding in the motion that the plaintiff fulfilled his part of the agreement; This contract'would no dpubt be void, if it belonged to that class of contracts to which it is likened by the defendant’s counsel. We distinguish it from cases of a promise to pay another for soliciting a will to be made in his favor, or for procuring a marriage between certain parties, and other analogous cases. No principle of law or public policy is violated by the carrying out of this contract. As to the question of the sale of the good-will of a professional business, without entering upon an examination of the various cases from Bunn v. Guy in the 4th of East, to that of Austen v. Boys in 27 Law Journal, Chancery, 714, (S. C., 2 DeGex & Jones, 626, and 22 Jurist, 719,) we feel warranted in saying that a practising physician may make a sale of his situation, may lawfully make such a contract as was here made. We find nothing exceptionable in the rulings and decision of the court below, and the motion for a new trial must therefore be denied. In this opinion Butler, C. J., and Carpenter, J., concurred. Pare, J., was of opinion that the plaintiff’s agreement, in consideration of the money to be paid him by the defendant, to recommend the defendant to his patrons and patients, and endeavor to induce them to employ him, was contrary to good policy and rendered the whole contract void on that ground. He therefore dissented. Seymour, J., also dissented.