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they stand on a different footing. We cite some of the cases showing the tendency of recent judicial opinions on the general subject. In Whittaker v. Howe, a contract made by a solicitor not to practice as a solicitor 'in any part of Great Britain,' was held valid. In Rousillon v. Rousillon,3 a general contract not to engage in the sale of champaigne, without limit as to space, was enforced as being, under the circumstances, a reasonable contract. In Jones v. Lees, a covenant by the defendant, a licensee under a patent, that he would not during the license make or sell any slubbing machines without the invention of the plaintiff applied to them, was held valid. Bramwell, J., said: 'It is objected that the restraint extends to all England, but so does the privilege.' In Oregon Steam Nav. Co. v. Windsor," the cour enforced a covenant by the defendant made on the purchase of a steamship that it should not be run or employed in the freight or passenger business upon any waters in the State of California for the period of ten years. covenant in the present case is partial and not general. It is practically unlimited as to time, but this, under the authorities, is not an objection, if the contract is otherwise good. It is limited as to space since it excepts the State of Nevada and the territory of Montana from its operation, and, therefore, is a partial and not a general restraint, unless, as claimed by the defendant, the fact that the covenant applies to the whole of the State of New York, constitutes a general restraint within the authorities. In Chappell v. Brockway, Benson, J., in stating the general doctrine as to contracts in restraint of trade, remarks that

1 Whittaker v. Howe, 3 Beav. 383; Jones v. Lees, 1 Hurl. & N. 189; Rousillon v. Rousillon, L. R. 14 Ch. D. 351; Leather Co. v. Lorsont. L. R. 9 Eq. 345; Collins v. Locke. L. R. 4 App. Cas. 674; Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64; Morse v. Morse, 103 Mass. 73.

The

3 Rousillon v. Rousillon, L. R. 14 Ch. D. 351.

Jones v. Lees, 1 Hurl. & N. 189. Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64.

6 Ward v. Byrne, 5 M. & W. 548; Mumford v. Gething, 7 C. B. (N. S.) 305, 317.

7 Chappell v. Brockway, 21 Ward,

2 Whittaker v. Howe, 3 Beav. 157.

'contracts which go to the total restraint of trade, as that a man will not pursue his occupation anywhere in the State, are void.' The contract under consideration in that case was one by which the defendant agreed not to run or be interested in a line of packet boats on the canal between Rochester and Buffalo. The attention of the court was not called to the point whether a contract was partial, which related to a business extending over the whole country, and which restrained the carrying on of business in the State of New York, but excepted other States from its operation. The remark relied upon was obiter, and in reason cannot be considered a decision upon the point suggested. We are of the opinion that the contention of the defendant is not sound in principle and should not be sustained. The boundaries of the States are not those of trade and commerce, and business is restrained within no such limit. The country as a whole is that of which we are citizens, and our duty and allegiance are due both to the State and nation. Nor is it true, as a general rule, that a business established here cannot extend beyond the State, or that it may not be successfully established outside of the State. There are trades and employments which, from their nature, are localized; but this is not true of manufacturing industries in general. We are unwilling to say that the doctrine as to what is a general restraint of trade depends upon State lines, and we cannot say that the exceptions of Nevada and Montana was colorable merely. The rule itself is arbitrary, and we are not disposed to put such a construction upon this contract as will make it a contract in general restraint of trade, when upon its face it is only partial. The case of the Oregon Steam Nav. Co. v. Winsor,' supports the view that a restraint is not necessarily general which embraces an entire State. The defendant entered into the covenant as a consideration in part of the purchase of his property by Swift & Courtney & Beacher Company, presumably, because he considered it for his advantage to make the sale. He realized a large sum in money, and on the completion of

1 Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64.

1

the transaction became interested as a stockholder in the very business which he had sold. We are of opinion that the covenant being supported by a good consideration, and constituting a partial and not a general restraint, and being, in view of the circumstances disclosed, reasonable, is valid and not void." It will be observed that the view here presented is, substantially, that of the English courts, and that the authorities by which it is supported are largely English. The rule, as here stated, has not been generally accepted by the courts of this country. Whether the trend in this direction is strong enough to secure its universal or general acceptance is yet to appear. In a recent case in Wisconsin, defendant agreed to purchase $200,000 worth of goods from plaintiff, who agreed not to sell like articles in some thirty States and territories of the United States. In an action for goods sold and delivered, defendant set up this contract, and alleged breaches of it as a counterclaim. There was nothing to show the ordinary amount of manufacture and sale by either party, or that defendant had established a trade in more than one State out of the thirty. It was held that the pleading was demurrable in not affirmatively showing that the restraint was reasonably necessary to protect defendants under the contract. For a full statement of the doctrine, as administered in Wisconsin, see the accompanying note.2

1 Diamond Match Co. v. Roeber, employments and capacities in 106 N. Y. 473, 482. which they are most useful, and that they tend to expose the public to the evils of monopoly. Kellogg v. Larkin, 3 Pin. 123; Laubenheimer v. Mann, 17 Wis. 561; Alger v. Thacher, 19 Pick. 51; Bishop v. Palmer, 146 Mass. 469, 473; s. c.. 16 N. E. Rep. 299; Oregon Steam Navigation Co. v. Winsor, 20 Wall. 66, 67; Gibbs v. Gas Co., 130 U. S. 396; s. c., 9 Sup. Ct. Rep. 553; Lange v. Werke, 2 Ohio St. 519; Gamewell, etc. Tel. Co. v. Crane, 160 Mass. 50; s. c., 35 N. E. Rep. 98. These cases show and many others

2 Richards v. American Desk Co., 87 Wis. 503; s. c., 58 N. W. Rep. 787. "That any agreement in restraint of trade of one of the parties to a contract is void as being against public policy, unless founded upon a valuable consideration, and limited as regards time, space and the extent of the trade, to what is reasonable under the circumstances of the case, is well settled, for the reason that such contracts tend to deprive the public of the services of parties in the

Territorial Limits Determined.-There is a class of cases in which the court is called upon to construe or to define the provisions of a contract relating to territorial limitations. In a case in Michigan, an agreement between

physicians that one would not practice in a specified city and vicinity, was construed as excluding him from all territory within ten miles of the city limits. In the opinion, the court said: "The decree restrains the defendant from practicing his profession in the city of Hastings and vicinity.' This clause of the decree is somewhat indefinite as to the extent of the territory to which it applies, and may give rise to further misunderstanding between the parties. For the purpose of obviating any difficulty of this kind, the decree made by the circuit judge should be so modified as to make certain the limits of its operation. Of course, the extent of territory included in the term 'vicinity of the city' must necessarily depend in a great measure

States and territories of the United States, and in the District of Columbia,' and so the case really came within the rule under consideration, and the restraint was reasonably necessary to protect the other party in his purchase. Tode v. Gross, 127 N. Y. 485; s. c., 28 N. E. Rep. 469, was in relation to a restraint imposed upon the vendor of a business founded on a secret process, but it recognizes and sustains the general rule. A manufacturing business founded upon the use of a secret process, or the use of patented processes or means, is not understood to be within the rule. The cases of Leather Cloth Co. v. Larsont, L. R. 9 Eq. 345, and Rousillon v. Rousillon, L. R. 14 Ch. Div. 351, are understood to represent the more modern views of the law on this subject. In the former case it was said: 'All restraints upon trade are bad as being in violation of public policy, unless they are actually and not unreasonably for the protection of parties in dealing legally with some subject-matter of contract.' The same subject was

considered in the somewhat recent case of Davies v. Davies, L. R. 36 Ch. D. 359, in which Cotton, L. J., held the law to be 'that a limited restraint may be good, provided the restraint is reasonable and such as was required for the protection of parties with whom the covenant is entered into; and that the rule ought not to be altered but by the House of Lords; and Bowen, L. J., held substantially the same view, and notices that in that case the court had no material for deciding that the covenant in question was beneficial to the public or reasonably necessary for the protection of the covenantee, and in substance, that to sustain it would be 'leaping into the dark,' while Fry, L. J., was inclined to adhere to his decision in Rousillon v. Rousillon, supra, and to hold that the burden of proof as to the validity of the restraint is shifted by showing that it has been entered into for the protection of the interests of one of the contracting parties." Pinney, J., in Richards v. American Desk & Seating Co. (1894), 87 Wis. 503 s. c., 58 N. W. Rep. 787, 789.