son said: "The public service is protected by protecting those engaged in performing public duties, and this, not upon the ground of their private interests, but upon that of the necessity of securing the efficiency of the public service, by seeing to it that the funds provided for its maintenance should be received by those who are to perform the work, at such periods as the law has appointed for their payment." 1 view of future services, it was unassignable." Bliss v. Lawrence, 58 N. Y. 442. 445. Each of certain deputies and copyists in the office of the clerk of the city and county of San Francisco (in the early part of the month of July, 1881, or before the commencement of that month), delivered to the clerk a writing purporting to be a demand upon the treasury of said city for his compensation or salary as for said July, and having indorsed thereon the words 'received payment.' subscribed with the name of such deputy or copyist. The writing was immediately, and before the salary was due, delivered by the clerk to the petitioner for a valuable consideration. * * But the plaintiff received the demands in the early part of July,' and before the respective salaries for that month were earned. He thus took part in a transaction contrary to public policy, and must be held to have knowingly contravened the law." Bangs v. Dunn (1884), 66 Cal. 72; s. c., 18 Reporter, 752. A contract by which the clerk of the Louisville chancery court transfers and assigns to a trustee for the benefit of appellant, in consideration of a debt due him, all the fees and emoluments of his office in the future, until the debt is paid, with conditions to pay deputies, etc.. is void. It is against public policy that such contracts be enforced. Field v. Chipley, 79 Ky. 260. Defendant, a public officer, verbally assigned a share of his pay, to accrue for a certain month, to plaintiff, but subsequently collected the whole, and only paid over to plaintiff a part of the share he had assigned. Held, that the sale was void under the statute of frauds. The sale by a public officer of his salary, as such, before it is earned, is void as against public policy. Billings v. O'Brien, 14 Abb. Pr. (N. S.) 238. In Wisconsin, in marked contrast with the foregoing, the court, in State Bank v. Hastings, 15 Wis. 78, says: "We are referred to some English cases which hold that the assignment of the pay of officers in the public service, judges' salaries, pensions, etc., was void as being against public policy; but it was not contended that the doctrine of those cases was applicable to the condition of society, or to the principles of law or public policy in this country. For certainly we can see no possible objection to permitting a judge to assign his salary before it becomes due, if he can find any person willing to take the risk of his living and being entitled to it when it becomes payable." 1 Bliss v. Lawrence, 58 N. Y. 442, 445. § 36. tract. Where Contracts Relating to Patents are not Upheld. 55. Restraint in the Sale of a 56. Trade-Mark. Restraint in Publication Introductory. —The general principle on which contracts in restraint of trade have been held to be in contravention of public policy, and, in consequence, void, is that it is the duty of the law-making power to secure to every citizen the right to pursue his ordinary avocation and to dispose of his labor, or of the product thereof, without restraint, and to protect the public from the evil consequences of an agreement under which it would be deprived of the benefits of competition in skilled labor. The law has regard, on the one hand, to the interests of the person restrained from labor or trade, protecting him from oppression or from the consequences of an injudicious bargain, and, on the other hand, it takes account of the interest of the community in providing that it shall not be deprived of the benefit of his business, or exposed to the burden of his support, as a result of his lack of employment. In a case before the Supreme Judicial Court of Massachusetts, the principle was stated by the court, as follows: "The unreasonableness of contracts in restraint of trade and business is very apparent from several obvious considerations: 1. Such contracts injure the parties making them, because they diminish their means of procuring livelihoods and a competency for their families. They tempt improvident persons, for the sake of present gain, to deprive themselves of the power to make future acquisitions, and they expose such persons to imposition and oppression. 2. They tend to deprive the public of the services of men in the employments and capacities in which they may be most useful to the community as well as to themselves. 3. They discourage industry and enterprise, and diminish the products of ingenuity and skill. 4. They prevent competition and enhance prices. 5. They expose the public to all the evils of monopolies. And this especially is applicable to wealthy companies and large corporations who have the means, unless restrained by law, to exclude rivalry, monopolize business and engross the market. Against evils like these wise laws protect individuals and the public by declaring all such contracts void." The rule under which 1 Alger v. Thatcher, 19 Pick. 51. 54. See also Clerke v. Comer, Cas. t. Hardw. 53; Chesman v. Nainby, 2 Ld. Raym. 1456; s. c.. 3 Bro. I'. C. 349; Freemantle v. Company of Silk Throwsters, 1 Lev. 229; Cuddon v. Eastwick, Salk. 193; Harrison v. Godman, 1 Burr. 12; Pierce v. Bartram, Cowp. 269; Gunmakers v. Fell, Willes, 384; Harrison v. Gardner. 2 Madd. 198; Shackle v. Baker, 14 Ves. 468; Morris v. Coleman, 18 Ves. 468; Crutwell v. Lye, 17 Ves. 336. The law will not permit any one to restrain a person from doing what the public and his own interest require that he should do. Any deed, therefore, by which a person binds himself not to employ his talents, his industry or his capital in any useful undertaking in the kingdom, would be void, because no good reason can be imagined for any person imposing such a restraint on himself. But it may often happen that individual interest and general convenience may render engagements not to carry on trade, or to act in a profession in a particular place, proper." Best, C. J., in Homer v. Ashford, 3 Bing. contracts in restraint of trade were held to be against public policy and void was established in England at an early day, and, with some modifications, by which it has been 319. "In accordance with these principles, it is well settled that a stipulation by a vendee of any trade, business or establishment that the vendor shall not exercise the same trade or business, or erect a similar establishment within a reasonable distance, so as not to interfere with the value of the trade, business or thing purchased, is reasonable and valid. In like manner a stipulation by the vendor of an article to be used in a business or trade in which he is himself engaged, that it shall not be used within a reasonable region or distance so as not to interfere with his said business or trade, is also valid and binding. The point of difficulty in these cases is to determine what is a reasonable distance within which the prohibitory stipulation may lawfully have effect. And it is obvious, at first glance, that this must depend upon the circumstances of the particular case; although, from the uncertain character of the subject, much latitude must be allowed to judgment and discretion of the parties. It is clear that a stipulation that another shall not pursue his trade or employment at such a distance from the business of the person to be protected, as that it could not possibly affect or injure him, would be unreasonable and absurd. On the other hand, a stipulation is unobjectionable and binding which imposes the restraint to only such an extent of territory as may be necessary for the protection of the party making the stipulation, provided it does not violate the two indispensable conditions, that the other party be not prevented from pursuing his calling, and the country be not deprived of the benefit of his exertions." Bradley, J., in Oregon Steam. Nav. Co. v. Winsor, 20 Wall. 64, 68. "It appears, and is conceded by appellant, that the particular business or trade in which appellee was engaged at the time he sold out and executed the contract in controversy was confined to the limits of the city of Hammond. There is no contention that it extended to any other parts of the State beyond these limits. Neither from the nature of the business nor otherwise, does it appear that it was necessary for the protection of the appellant that the appellee should be prohibited from engaging therein at any and all places in the State other than the city of Indianapolis. It is a matter of general knowledge that there are numerous consumers of oil for fuel and illuminating purposes in this great and growing State, and it is manifestly to their interest that there should be competition in the selling of the same, at least, that the price thereof may be reasonable. The enlarged covenant of restraint as to territory, it is obvious, was unnecessary under the circumstances. It could serve no purpose, except as a tendency towards the monopoly of the business. If appellant could buy out appellee and restrict him in this manner, it might proceed to do so to every other. person in the whole State engaged in a similar business, and eventually reduce the sale of oils in the State to comparatively few hands, or possibly to its own adapted to the changed industrial conditions of later times, it continues to be the doctrine of the English and American courts. § 37. The General Rule. The general doctrine, as established by very numerous decisions, through a long series of years is, that contracts in restraint of trade are in contravention of public policy and in consequence void. In every case this is the presumption, and the burden of proof is upon the party seeking relief. But this rule is subject to modification by the force of circumstances. A contract in restraint of trade will be held valid where it is limited in its operation, is founded upon a valuable consideration and is reasonable in its provisions. It must not be oppressive to the party restrained from taking an advantage of his necessities; it must not involve a sacrifice of his interests as the result of an injudicious surrender of his rights, and it must not be prejudicial to the interests of the public. All covenants in general restraint of trade, that is, all contracts which restrain a man from carrying on business, or absolute control, and thus virtually stifle legitimate competition. The law has always been hostile to the creation of monopolies when they tend to impair the interest of the public. It is elementary that whatever is injurious to or against the public good, is void on the ground of public policy. This policy unquestionably favors competition in trade to the end that its commodities may be afforded to the consumer as cheaply as possible, and is opposed to monopolies which tend to advance prices to the injury of the public in general." Jordan, J., in Consumers' Oil Co. v. Nunnemacher, 142 Ind. 560. 567. See generally the following cases: Mitchell v. Reynolds, 1 P. Wms. 181; Whitney v. Slayton, 40 Me. 224; Perkins v. Clay, 58 N. H. 518; Clark v. Crosby, 37 Vt. 188; Hedge v. Lowe, 47 Iowa, 137; Arnold v. Kreutzer, 67 Iowa, 214; Laubenheimer v. Mann, 17 Wis. 542; Fairbank v. Leary, 40 Wis. 637; Keeler v. Taylor, 53 Pa. St. 467; McClurg's Appeal, 58 Pa. St. 51; Koehler v. Fearbacher, 2 Mo. App. 11; Boutelle v. Smith, 116 Mass. 111: Lightner v. Menzel, 35 Cal. 468; Hubbard v. Miller. 27 Mich. 15; Thomas v. Mills, 3 Ohio St. 274; Lange v. Werk, 2 Ohio St. 519: Guerand v. Dandelet, 32 Md. 561; Jenkins v. Temples, 39 Ga. 655; Hoagland v. Segur, 38 N. J. L. 230; Curtis v. Gokey, 68 N. Y. 300; Chappell v. Brockway, 21 Wend. 157; Lawrence v. Kidder, 10 Barb. 641; Bowser v. Bliss. 7 Blackf. 344; Talcott v. Brackett, 5 Bradw. 60; Linn v. Sigsbee, 67 Ill. 75; Stearns v. Barrett, 1 Pick. 443: Turner v. Johnson, 7 Dana, 435. |