Smalley v. Greene

Day, J. i. contract: feciiolfs!’001 I. The judgment of the court does not show upon what ground the demurrer was sustained. We think no damages can be recovered on account of the neglect of the defendant to turn over to the plaintiff the four [243] thousand live hundred dollars of notes which the defendant liad in his hands for collection. It is presumed that the defendant’s clients selected him for the collection of these notes because they reposed confidence in his capacity and'integrity, or for some reason desired him, in preference to all persons else, to perform this service. The defendant had no right to substitute another for the performance of a duty which he had agreed'to discharge himself, and he could not, without the consent of his clients, bind them to accept the plaintiff to perform this service. If the notes had been turned over to the plaintiff by defendant, his clients could immediately have demanded and compelled their surrender. The plaintiff must have known that in this part of the agreement the defendant undertook to do what he had no legal right to perform. For a breach of this part of the agreement damages are not recoverable. _._. public policy, II. Appellee insists that defendant’s agreement not to engage again in the practice of law in Adel is against public policy and void. The defendant did not agree generally not to engage in the practice of law, but simply not to engage in the practice of the law at Adel. A contract in restraint of trade as to particular places is. valid. Hedge, Elliott & Co. v. Lowe, 47 Iowa, 137, and cases cited; Jenkins v. Temples, 39 Ga., 655; Chappel v. Brockway, 21 Wend., 157. In Holbrook v. Waters, 9 Howard’s Pr. Rep., 335, it was held that an agreement upon sufficient consideration not to practice medicine, nor in any manner to do business as a physician in the county of Oswego, at any time after the first day of May, 1851, was valid. In Bunn v. Guy, 4 East., 190, a contract entered into by a practicing attorney to relinquish his business and recommend his clients to two other attorneys for a valuable consideration, and that he would not himself practice in such business within one hundred and fifty miles of London, was held to be valid. See also Heichew v. Hamilton, 3 G. Greene, 596; S. C., 4 G. Greene, 317. 3; — —: frauds. III. The point raised in the demurrer that the contract could not be performed within a year is not argued by counsel. The petition alleges performance of the agreement on the part of the plaintiff. In Cheny [244] v. Hemming, 4 Excheq., 631, it was held that the provision of the statute of frauds respecting contracts not to be performed in a year applies only to contracts not to be performed on either side, and not to a contract performed on one side within the year. See also Donellan v. Read, 3 B. & Ad., 899; Riddle v. Backus, 38 Iowa, 81; Blair Town Lot and Land Co., v. Walker, 39 Iowa, 406, and cases cited. IY. The petitions alleges a sufficient consideration; for the defendants agreement not to engage in the practice of law at Adel, and for a breach of this agreement the plaintiff is entitled to damages; It is urged, in the argument, that the petition is insufficient because it does not allege that the plaintiff’ is an attorney, and it does not, therefore, appear that he could be benefitted by the agreement. This objection is not raised in the demurrer, and cannot for the first time be presented here. In sustaining the- demurrer generally, the court erred'. Reversed,