Hanna v. Andrews

Adams, J. l. contract : sMe °f good, It is not claimed that the defendant did anything inconsistent with his contract until after the expiration of three years. The question presented is as to after that time, it was allowable for him to solicit the agency of the very lands, the list of which he had transferred to the plaintiff, and which he had agreed to assist the plaintiff in obtaining the agency of. The plaintiff maintains that, while the defendant might return to the land .agency business after the lapse of three years and compete [464] with him in a general way, he should not under his contract be allowed to compete with him for the agency of the lands in regard to which they had specifically contracted. It is not contended by the appellant that the appellee has not transferred to him all that he agreed to transfer. The breach of the contract then, if any, does not consist in the omission to do something which the appellee agreed to do, but in doing something which the appellee agreed not to-do. If there is a breach of the contract in soliciting the agency of the lands embraced in the list transferred to the appellant it is because the appellee agreed that he would not solicit the agency of such lands. Now there is no pretense that there is any express agreement to that effect except for' the period of three years from the date of the contract. If there is an agreement to that effect it arises by implication of law from .an express agreement. What appellee agreed to do was to transfer his list of lands and correspondence, and the good-will of his business, and give letters of introduction. If we should concede that the sale of the good-will of a business, without restrictions upon the seller, would raise an implied agreement not to re-engage in the same business in the same-place, such concession would not, we think, aid the plaintiff. By the terms of the appellee’s contract it was allowable for him after three years to re-engage in the land agency business, and the only question is as to what extent he may do so. It appears to us that when the appellant provided for the-return of the appellee to the business after three years, he opened the door to the appellee to come in and compete with him in every respect. The appellee, if applied to, could certainly accept the agency of the lands in question. He could' certainly compete for the agency by general advertisement, by acquaintance, and by fidelity to business. The courts, we-think, could not properly undertake to draw the line between such competition and that which should be carried on by more or less direct solicitation. Affirmed.