Supreme court. Rice A. Beal, appellee, vs. Alvan W. Chase and the Ann Arbor printing and publishing company, appellants. Appeal from Washtenaw circuit court. In chancery. Argument of H.J. Beakes, for defendants.
Beakes, Hiram J

Page  [unnumbered] SUPREME COURT. RICE A. BEAL, Apfpellee. vs. ALVAN W. CHASE AND THE ANN ARBOR PRINTING AND PUBLISHING COMPANY, Appellants. Appeal from Washtenazw Circuit Court. In Chancery. Argument of H. J. Beakes, for Defendants. LAWRENCE & SAWYER, Solicitors for Appellants. GEORGE V. N. LOTHROP AND HIRAM J. BEAKES, Of Counsel, for Appellants.

Page  [unnumbered]

Page  1 RICE A. BEAL, Complainant, VS. ALVAN W. CHASE, and THE ANN'ARBOR PRINTING and PUBLISHING COMPANY, Defendants. STATElCE]NT OF TIE: CAsSE About August 30th, 1869, the,defendant, Chase, sold and conveyed to the complainant real estate in Ann Arbor,- on which there was a dwelling-house and a brick building called' "Dr. Chase's Steam Printing House." At the same time Dr. Chase sold to Beal the following property as described in the contract, viz: " The: machinery, boiler, engine, presses, tools, furniture and stock of whatever name or nature, in the building'occupied by said Chase as his steam printing office and this'day' sold by him," to said Beal, " together with all the accounts for unfinished work on which payment has not already' been made, together With: the subscription list of tlje'Peninsular Cou-rier' and Family Visitant, and also the copyright to-' a: book-called'Dr. Chase's Recipes, or Information r for Ev0'`ybo'dyl" and also another book called'The Judd Famil-y;'` also' a' book: called' Reminescences; of a Voyage around: the- W'orld,' a copyright of which is hereafter to be obtainned, tbgether with- tlhe good will of the business of prin-ting and publishing, and alo- tlhed right to use the name of Dr. Chase: in connection with' saidclboOks, and all the stereotype; and electro plates for said books now coiiAL pleted, and also all the book-bindery' tools and stockl-'and all'con

Page  2 tracts for printing and publishing, together with all moneys hereafter to be received upon jobs or work unfinished." The contract between Chase and Beal was in writing and under seal and contained the following covenant: " And the said party of the first part, (Dr. Chase,) also agrees that while said Beal remains in said business of printing and publishing in Ann ArbOr, he- will not, either directly or indirectly, engage in the business of printing and publishing in the State of Michigan." The contract further provided that " said Beal is to have the privilege of receiving the letters connected with said business, and opening the same.." See Contract, pp. 53, 77, 452. The bill sets out this contract in substance, together with what it alleges to have been the negotiations between Chase and Beal relating to the purchase, together with alleged parol assurances and promises on the part of Chase, which are introduced into the bill for the apparent purpose of enlarging the contract. I say parol promises, because I think that is the fair though not very distinct import of the bill, and because the evidence clearly shows that the whole written contract between the parties is the one of which "' Exhibit B," annexed to the answers of the defendants, on pages 53 and 57 of Record, and which was put in evidence by complainant as " Exhibit No. 2," (see page 452,) the substance of which I have quoted above. The parol promises alleged in the bill are that " it was understood and agreed between them, (mneauing between Chase and Beal) that to enable your orator to enjoy the full benefit of his purchase of the copyright of said book," (meaning " Dr. Chase's Recipes, or Information for Everybody,") and of the good will which said Chase had secured in the sale of the same, and the arrangements made by him for such sales, that all letters which should come addressed to him, said Chase, at said post-office and not inscribed with the number of his private box should be delivered to your orator at said office and be opened by him, and that he should retain all said letters as related to said book or any matters pertaining to the business aforesaid, to enable your orator to receive and appropriate to his own use all such remittances, whether the same were money, drafts or post-office orders, and to write said Chase's name whenever necessary in connection

Page  3 3 therewith, your orator to deliver or send to said Chase such of the letters received as should be found on inspection to have no relation to said book or business:" (See page 5:) and on page 7, after alleging certain "'representations" during the negotiations, the bill proceeds to state:' and he further assured your orator and agreed with him that upon,aid sale being made, he would not only retire altogether from such business, but would aid your orator in said business, and especially in the sale of said book, by his advice and counsel, and all the means in his power, and that he would devote the next six months, at least, with his personal services for that purpose, and would continue thereafter to do what he could to promote your orator's interest in such business, and to make the sale and publication of said pook profitable to your orator." The answer of Dr. Chase admits the making of the written contract and sets out a full copy of it, (being "' Exhibit B," page 53,) and a copy of the deed, (" Exhibit A," page 51, and avers that such written contract and deed constituted the entire contract, pages 31 and 35. He avers that at the time of the sale he had no private post-office box, (aside from the Peninsular Courier drawer, in which the exchanges of the newspaper and Chase's mail had been received previous to the. sale,) and that after the sale was consummated, on some (lay subsequent to the delivery of the deed and contract, he'i as a mere matter of courtesy and convenience to the complainant, and without any consideration to Chase or obligation on his part to do so, and in contemplation of a temporary absence of said Chase from Ann Arbor, verbally consented that Beal might receive and open all letters which should come addressed to Chase at thle post-office, but that he had no thought or intention of surrendering permanently, to complainant or any other person, the right of opening his correspondence generally, and never received any consideration for any such surrender, but that the concent he gave was a mere temporary license and subject to revocation at any time, except so far as letters addressed to him are governed by said written contract of which'' Exhibit B." is a copy. See pages 35, 36 and 37. He denies making any agreement to retire altogether from the

Page  4 4 business or to aid the complainant as alleged in the bill, or to devote the next six months of his personal service, or that he would continue. thereafter to do what he could to promote: the complainant's interest in such business and to-make said books profitable to complainant, but admits that he told complainant that ifthe purchase should be made, he, as a gratuity, would aid and assist Beal il his business for three months; and he avers that not a word was said by either party about Chase's retiring or restraining himself from engaging in the printing and publishing business until the purchase had been agreed on, the deeds and mortgages executed and assigned and the written contract was about half completed, when the complainant for the first time proposed that Chase should be restrained by contract from engaging in the printing and publishing business; and that he received no additional consideratiol. for the restraint in the contract. He avers that the consideration-price as finally received had been agreed upon and settled between him and Beal, two days before the subject of restraining him from engaging in business was mentioned. Pages 41-42. He. denies that Beal was induced to believe by the representations stated in the bill, that in making the.purchase, he, (Beal,) did or could acquire the exclusive right to the -reputation of Chase, as author; of said book, or that Chase would enter into no competitionwith him, &c. Page 60. He insists. that all the parol negotiations!touching the contract which was reduced to writing were merged in the writing, or abandoned thereby. Page 32. The bill alleges Chase's representations the extent of the business,,and avers that such representations were true. Pages 3 and 4. The material representations alleged in the bill ast-o the extent of the business of job printing, &c, are denied. See pages 32, 33, 34. He admits that the sales of the hook, "' Dr. Chase's Recipes, or Information for Everybody," previous to the:close of 1868, had been over 325,000 copies. Page 33. He avers:that the so-called "agents" for the sale of' the book, were, in fact, direct purchasers from him for cash. Page 33.

Page  5 The bill alleges that the consideration for the sale was sixtyfive thousand dollars. The answer of Chase shows that the actual consideration was thirty-five thousand dollars in cash and securities treated as cash, and the remainder of the consideration was Minnesota real estate, called in the trade thirty thousand dollars, but of which the real %alue M as only abotut six thousand dollars. Page 32. The Ann Arbor. printing and Publishing Company is a corporation organized under the laws of the State of Michigan,- August 26th, 1872, by artieles of association executed on that day, and filed in the office of the Secreiary of State, August 28th, 1872, and in the office of the Clerk of Washtenaw county, August 30th, 1872. Record, p. 56 to 59, and 84 to 86. The defendant Chase was one of the corporators, and until August 1st, 1873, was President, Superintendent, and a member of the Board of Directors. The other corporators were James C. Watson, Henry S. Dean, Sedgwick I)ean, Henry Krause, and Zina P. King. All the corporators were members of the Board of Directors, and each had an equal voice in the Board.' Until August 1St, 1873, James C. Watson was Vice-President, Zina P. King, Secretary, and Henry S. Dean the Treasurer of the company. Since that date James C. Watson has been the President, Henry Krause, Vice-Preside-nt, H. S. Dean, Treasurer, and Zin a P. King, Secretary. Dr. Chase, on the 1st day of August, 1873, sold to the other corporators his interest in the company, and retired from it in every capacity, and since that time, until N0ovember 18th, 1873, the only relation between: Chase and the corporation was the royalty contract, of which " Exhibit C," page 54i is a copy. September 30th, 1873, the Ann Arbor Printing and Publishing Company assigned this iroyalty contract, of which "Exhibit C.," page 54, is a copy. September 30th, 1873, the Ann Arbor Printing and Publishing Company assigned this royalty contract; to the Chase- Publishing Company, of Toledo, Ohio,: and on the 18th of November, 1873, Chase assented to the assignment. See Exhibit- "A. A. 1," pp. 292, 480, 481:. Since: the. last mentioned date no contract relations: whatever have existed between Chase and the defendant corporation. Pp. 265; 266. The bill alleges that about Dec. 1st, 1872, Chase;, in violation; B

Page  6 6 of his agreement, engaged in the printing and publishing business in Ann Arbor, and is still so engaged, and has the charge and management of a large printing establishment, and has published and is still publishing books and cla weekly newspaper, &c.; that such business is ostensibly carried on in the name and under the style of the Ann Arbor Printing and Publishing Company, which claims to be a corporation, organized under the laws of Michigan; but the complainant charges that Chase, after having threatened complainant that he would again engage in said business, promoted and caused the said corporation to be organized with the intention of evading his liability by the use of the corporate name; that the said organization consisted originally, and he believes still consists, of six stockholders; that Chase subscribed and owns one-half or more of the stock of the company; that Chase is the only one of the stockholders experienced in the business; that the six stockholders were and are the six directors of the corporation, but. that it was the intention from the first that the company business should be under the care, super:ision and direction of Chase: that before and at the time of the organization of the corporation, all the stockholders knew of Beal's purchase from Chase, and that Beal was still continuing the business under the name of " Dr. Chase's Steam Printing House," in Ann Arbor, and knew that Chase had entered into a contract with Beal in reference to the same, and had no right to establish and carry on such business at said city, directly or indirectly; and that Chase has had from the first the sole management of the business affairs of the company's establishment and has been and is its President and Superintendent. The bill charges that Chase " has recently, as author, prepared another book entitled: 1873. The New Book. 1873. Dr. Chase's Family Physician, Farn ier, Bee-Keeper and Second Receipt Book, being an entirely new and complete treatise," &c., and has caused such new book to be printed and published under his direct superintendence, but in the name of the Ann Arbor Printing and Publishing Company, at the establishment of the company in Ann Arbor, and that extensive efforts are being made for the sale of the new book throughout the country; that said

Page  7 7 Chase and said company have sent a prospectus of the new book to persons acting as agents of the first book, with proposals for them to act as agents for the sale of the new book, and with a view of superceding the former book, and that they are each endeavoring by the use of the reputation of Dr. Chase and his first book, and the pretence that the second book contains full information on the same subjects, and is a better and more complete book than the first, and by the use of similar, and in some instances the same agencies to supercede the sale of the first book, and claims that Beal has a right to the good reputation of Chase as author, and to the arrangements made by Chase for the sale of the first book, and to such aid as Chase can render him, and that the course of Chase and the Ann Arbor corporation is in derogation of his rights, and if continued, will greatly impair or entirely destroy the sale of the book, the copyright of which was so purchased by him from Chase, and which he avers constituted a very material part of' the consideration which induced him to purchase. Pp. 7, 8, 9. The answers of both detbndants and the uncontradicted evidence show that the Ann Arbor Printing and Publishing Company was organized without any reference to Beal's contract with Chase, and with no intent to evade any such contract; that Chase having had legal advice that the restraining contract was void, determined to go into the business before the corporation was formed, and had informed Beal of that intention at least one and a half years before, and had purchased some material and commenced setting type for his new book; that after the formation of the corporation, Chase transferred his new book and printing material to it in September, 1872, and that the defendant corporation not only ostensibly, but in reality and good faith had ever since carried -on the printing and publishing business without concealment or cover. The answers deny the allegation of the bill, (and the uncontrodicted evidence sustains the denials,) that all the stockholders knew any restraining contract with Chase when the company was organized, and show that those stockholders who did know of his contract believed it to be void. Pp. 28.5, 286. It clearly appears that the corporation is a genuine one; that all the stock was assessed alike, and that all the stockholders

Page  8 8 paid pro rata; that several of them engaged actively in the business of the corporation., King being the editor of the newspaper, and secretary of the corporation, Co]. Dean being the treasurer, Professor Watson having been a practical printer, was the vicepresident, and he and Sedgwick Dean were a standing. committee to examine: the books and supervise accounts; that Chase originally took half of. the stock, and never had more than that, the other half having been taken by the other stockholders. Pp. 56 to 58, 266, 267, 292, 293. Professor Watson's testimony, pp. 392, 394, 395. Col. Dean's testimony, " 404,.405, 406. Sedgwick Dean's testimony, " 412, 413, 414. Zina P. King's testimony,'" 427, 428, 429. Henry Krause' testimony, " 439, 440. Soon after Beal's purchase fiom Chase he changed the name of the establishment and imprint from "' Dr..Chase's Steam Printing House" to " Courier Steam Printing Ilouse, R. A. Beal, proprietor." Chase's answer, pp. 40, 41. Compariy's answer, p. 67; also pp. 396, 406, 414. The. Ann Arbor corporation printed and published Chase's Second Receipt Book, under the contract of which " Exhibit C." annexed to the answer is a copy. Chase has caused that book to be published only by entering into that contract, though the work was done under his direct supervision and care in behalf of the corporation, but it was done. in the regular course of the business of the company, and.under the direction of its board of directors. Chase's answer, p. 45, also Company's answer. The bill alleges that until the establishment of the printing and publishing office of the defendants, or about that time, the complainant received the letters which came to the Ann Arborpostoffice, directed to Chase, and opened the same, and carried on all correspondence in reference to said book and business of "Dr. Chase's Printing House " without objection or hindrance, but that about said last mentioned time, Chase ordered the post-master not to deliver any letters coming to his address to complainant; that no such letters have been since delivered to complainant, but all directed to Chase have generally, as well as those directed to his

Page  9 9 private box, have been taken by Chase and opened by him; that for a short time after the time mentioned, Chase caused such letters as related to said business to be put into complainant's letter box, but since the publishing of the new book, to wit: about Mav 1st, 1873, said Chase has received all such letters and retained the same; that complainant believes that many letters pertaining to his book and business, and not directed to Chase's private box have been received by Chase, and that some of them contained money, some diafts, some post-office orders, and some were letters seeking for agencies for the sale of the first book, and others from persons who had previously been agents for the sale thereof; that said Chase, purporting to act as superintent of said company, replied to such letters and sent to such correspondents a. descriptive circular of his new book. I'ages 9 and 10. The answer of Chase to these allegations of the bill is found on pages 36,.37, 46, 47 of the Record: and the answer of the company on pages 71 and 72. Each defendant denies having done anything in derogation of Beal's rights. The other facts stated in the pleadings, as far as they be material in this case, can be more conveniently considered in more immediate connection with the 5points hereafter submitted. The bill was filed July 14th, 1873, with an exparte order endorsed thereon, granted by the Circuit:Judge, allowing an injunction in accordance with the prayer of the bill, except that the Ann Arbor Register was not to be interfered with by the injunction until the -expiration of the time required by law for the- publi. cation of the legal notices then being published in such newspaper, (see page 14,) in conformity with which order the injunction, ofwhich a copy appears on page 29, was issued and served on the defendants. And the record in the case shows that notwithstanding repeated efforts to obtain a dissolution-or modification of the injunction, the defendant corporation, (as well -as Chase,) was from that time until the first day of June, 1874, absolutely prohibited by the court below, not only from printing and publishing the second'Receipt Book, but also fromn carrying on or engaging, either directly or idclirectly, in the business of printing and publishing at all in the State of Michigan, (except during the brief suspension of the injunction as to thei company:'br C

Page  10 10 eight days in July, 1873, and except the publication of the newspaper for the few weeks requiried to complete legal advertisements as above stated), and this too without any reference to whether Chase should or should not cease to be in any way connected with the corporation, and under the sworn answers of defendants that he had ceased his conncetion as officer, corporator or employee in alny capacity, and with full knowledge of the decision of this court, in HIubbard vs. Millerl; and until September 1st, 1873, Chase was prohibited by injunction "from taking or receivihg from thee post-office in the city of Ann Arbor, any letter or letters received at said office addressed to said Alvan RZ. Chase which shall not have on them a designation of the number of said Chase's private letter box at said ofice, or in any manner interfering to prevent the delivery of the same to the said Rice A. Beal at said office, and from appropriating to his tuse any such letters or infiarmation therein contained, or any?money, drafts or post-office money orders transmitted in or with anly such letter, thereby giving to Beal the first reading and exclusive tuse of Chase's entire correspondence on every subject and from all persons, except such letters as happened to have the number of his private box on the superscription and depriving him forever of the right to his own property if transmitted in an envelope not containing the talesmanic number. The defendants noticed the case for hearing for every term of the court after issue joined. Some attempt at delay is shown by the record on the part of the complainant, but no attempt at diligence on his part. The case was finally submitted on the 9th of April, 1874, and on the first of June, 1874, the Circuit Court made a decree iestraining the defendant Chase, absolutely, "'fromn carrying on or being directly or indirectly engaged in the business of printing or publishing in the State of Michigan, so long as Beal shall remain in or continue to carry on the business of printing and publishing in the city of Ann Arbor," and restraining the defendant corporation " from printing or publishing, or being in any manner, directly or indirectly, interested in printing or publishing in this State,' Dr. Chase's Family Physician, Farrier, Bee-Keeper and Second Receipt Book,' so long as Beal shall contiune to carry on

Page  11 11 the printing and publishing business in Ann Arbor, and shall continue to print and publish the first book, being Dr. Chase's Recipes, or Information for Everybody,'" and 2d, restraining the company " from carrying on or continuing the b)usiness of printing or publishing within said State of Michigan, in connection with Chase, or wherein Chase shall be directly or indirectly engaged OR INTERS I ED;.and from printing or publishing, in connection as partners or otheirwise, with said Chase, or for his benefit in whole or in part, within said State, Dr. Chase's Family Physician, &c., and Second Receipt Book, so long as Beal shall remain in the printing and publishing business, in Ann Arbor, and shall continue to print' Dr. Chase's Recipes;' and the injunction before granted as to the letters, as the order, on page 108 of Record, was continued in force until further order, and the question of datnages and costs, as well as the question of changing the injunction as to the letters and all other questions were reserved." See Record, 509 to 511. Not being able to abtain a (decision of' the whole case, the defendants, after waiting for that purpose until June 24th, 1874, perfected their several appeals on that day, and filed the transcript in this court, in July, 1874. On the 16th of September, 1874, the Circuit Court mlade its final decree, ABSOLUTELY RESTRAINING CHASE, (AND THE COMPANY ALSZ, THOUGH THE COMPANY NEVER CLAIMED OR EXERCISED POSSESSION OR CONTROL OVER CHASE'S LETTERS,) FROM TAKING OR RECEIVING FROM THE.POST-OFFICE IN ANN ARBOR, ANY LETTER OR LETTERS THAT MAY BE RECEIVED AT THAT OFFICE, ADDRESSED TO SAID CHASE, WIIICH SHALL NOT HAVE UPON THEM A DESIGNATION OF THE NUMBER OF SAID CHASE'S PRIVATE LETTER BOX, AT SAID OFFICE, OR IN ANY MANNER INTERFERING TO PREVENT THE DELIVERY OF THE SAME TO SAID BEAL, AT SAID POST-OFFICE, AND FROM APPROPRIATING TO HIS OR THEIR USE, ANY SUCH LETTEIS, OR ANY INFORMATION THEREIN CONTAINED, Olt ANY MONEY, DRAFTS, OR POSTOFFICE MONEY ORDERS TRANSMITTED IN OR WITH ANY SUCH LETTER, SO LONG AS THE COMPLAINANT SHALL CONTINUE IN THE BUSINESS (OF PRINTING AND PUBLISHING IN ANjN ARBOR, AND REQUIRING CHASE AND THE COMPANY TO PAY TO BEAL TEN THOUSAND THREE HUNDRD AND SIXTEEN DOLLARS AND THIRTY-SIX CENTS for damages of complainant since the making of said contract, and the com

Page  12 12 mencement of this suit, in consequence of the carrying on by said defendants of the printing and publishing business in the city of Ann Arbor aforesaid, &c.; and also the complainant's costs of this suit, awarding execution against both defendants.therefor.. From the last decree an appeal has been taken bythe defendants, and though by reason of the delay in making this decree, the time required by the rule has not elapsed to entitle us to argue the last appeal, now, as matter of absolute right, we respectfully ask the court, under the circumstances of hardship in the case, to relax the rule and hear the whole case now, it being within the discretion of the court. BRIEF AND ARGUMENT FOR THE DEFENDANTS. The contract of Chase, a citizen of Michigan, that he would not, directly or indirectly, engage in the business of printing and publishing in the State of Michigan while Beal remains in the business of printing and publishing in Ann Arbor is void, because the common law does not tolerate a contract which restrains a man from exercising his trade or useful occupation throughout the whole commonwealth, any more than it would tolerate a contract to commit suicide. That general restraints of trade and occupation extending throughout England are void, is a doctrine as old as the common law, and as firmly settled as any rule of law can be. Public policy demands, and under the free principles of the common law of England has always demanded, that the free citizen should have liberty of industry in his own occupation and calling SOMEWHERE in the State. It is unreasonable that the State should compel one of its inhabitants to choose between abandonment of occupation-compulsory idleness in the State, on one hand, or emigration from it on the other hand, as the sole alternative. No consent can give one man the right to wholly deprive the State of the public benefits of another man's industry and

Page  13 13 skill in the occupation to -:which he has been trained. It concerns the. State-that there;should be no involuntary idleness within its borders, and that no man in it who is willing to work with histhand or brain should be tL a out. of it against his will. Michigan has had, and probably, still has, emigration agencies to invite settlers from abroad to her hospitable borders; but she hasnno agent except the self-constituted agency of this complainant" to induce her people! or her capital to go abroad. It is of no-importance to Michigan whether a member of. its population shall labor: in Washtenaw, Kent, or Cheboygan, but it is of. the:greatest importance to Michigan.that. there should:be ~some spot- within its broad territory where every inhabitant. of the State.may support himself and his family by the pursuit of his accustomed lawful avocation. may. sell his labor,. under -certain limitations, but he ~cannot sell his idleness —he cannot bind himself. to-an indolence from which. there is no escape but:in emigration. The work is as undoubted and indestructable as theiright to walk the earth or breathe the air. It belongs' to, him as a man. abdicated or bartered away. It is therefore well established that while a restraint of'trade which covers territory less extended than the State, if founded on a.valid' consideration, and, no more extensive:,or more burdensome to the. party. restrained than the interests of the other party reasonably and fairly requires:-may be lawfully-contracted for, bheaause the party restrained may carry on his business with equal advantage toihimself and. the public. elsewhere within the.commonwealth;,but if the restraining contract covers the WHOLE Statej, then, whether the State be large: or —small, whether the business.requires-,a- large or a: small. area, -whether the competition. wouldy reduce, the- profits of the would-be monopolist: or not, t-he- courts administexring the common law. will look no furtiher,, but.;will- hold, the restraint-absolutely void. As.long-.ago: asthe reign: of Henry V., in the year 1:415, it.was so well settled law that a contract imposing a.general restraint on trade. was void, that Judge Hull flew int.o:a. passion at the: verys sight of such a bond, and after declaring the obligation, void, and the condition contrary'to the common law, he said with an oath, that if the plaintiff were present he should go to prison till he D

Page  14 14 paid a fine to the king. 1 Smith's Leading Cases, 648, 6th Am. Ed. And the indignation of the Judge in that case has been often commended by courts since, while disapproving of the roughness of his manner of expressing it. Smith's Contracts, 181. In fact, the making of such a contract has always been deemed an act against the public interests, approaching a misdemeanor. In The Tailors of Ipswich vs. Shenninge, 11 Coke, Rep. 53, a., it was resolved that " at common law no one can be prohibited from working at any lawful trade, " for the law abhors idleness." In the case of Monopolies, 11 Coke Rep., 86, " it was resolved per totam curiam, that a grant to the plaintiff of the sole making of cards within the realm was utterly void for two reasons: 1. That it is a monopoly and against the common law. * * "Against the common law for four reasons: 1. All trades, as well mechanical as others, which prevent idleness, (the bane of the commonwealth,) and exercise men and youth in labor for the maintainance of themselves and their families and for the increase of their substance to serve the queen when occasion shall require, are profitable for the commonwealth." * * * "And the common law, in this point, agrees with the law of God, that every man's trade maintains his life. and therefore he ought not to be deprived or dispossessed of it, no more than his life." 3 Reeves' History of English Law, 594 to 596, Finlason's Ed., note a. In the leading case of Mitchel vs. Reynolds, 1 Peere Williams, 181, (also found in Smith's Leading Cases,) the whole subject was carefully considered in a luminous opinion which has been referred to in every subsequent case. It was held in that case that " general restraints by agreement of parties are all void, whether by bond, covenant or promise, with or without consideration, and whether it be of the party's own trade or not," but that " a man may, upon a. valuable consideration, by his own consent and for his own benefit, give over his trade and part with it to another in a particular place." And the following propositions were laid down (the action being debt on bond.) " lst.-That to obtain the sole exercise of any known trade

Page  15 15 THROUGHOUT ENGLAND is a complete monopoly, and against the policy of the law. 2d.-That when restricted to particular persons or places, (if lawfully obtained,) the same is not a monopoly. 7th. -That no man can contract not to use his trade at all. 8th.-That a partial restraint is not good without-just reason and consideration." Mitchel vs. Reynolds, 1 Smith's Leading Cases, part 2, page 643. (Marginal paging 510, 511.) Again in the same case, on page 646, it is said " a contract not to trade in any part of England, though with consideration, is void, for there is something more than a presumption against it, because it can never be useful to any man to restrain another from trading in all places, though it may be to restrain him from trading in some, unless he intends a monopoly, which is a crime." In Homer vs. Ashford, 3 Bingham, 322, (in 11 English Common Law Reports,) the Court of Common Pleas, by Chief Justice Best, said:' The first object of the law is to promote the public interest; the second to preserve the rights of individuals. The law will not permit anyone to restrain a person from doing what the public welfare and his own interest requires 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 restriction upon himself." In 2 Williams' Saunders, 156, note 1, the rule is laid down thus: " A bond, covenant or promise, even on good consideration, not to use a trade ANYWHERE IN ENGLAND, is void, as being too general a restraint of trade.'+ In Noble vs. Bates, 7 Cowen, 307, the court said: " A bond or promise upon good consideration not to exercise a trade for a limited time, and at a particular place, or within a particular parish, is good. But when it is general not to exercise a trade throughout the kingdom, it is bad, though founded on good consideration, as being a too unlimited restraint of trade; and operating oppressively on one party without being of any benefit to either." In Chappell vs. Brockway, 21 Wendell, 159, Judge Bronson said: "The common law will not permit individuals to oblige them

Page  16 1:6 selves: by; a.eontrae.t when the-:thing, to be done. or: omitted. is, injurious to the public." * * * "Contracts which go-to the ~total.restraint, of trade, as;that a man: will. no.tpursue- his occupation or carry. on.l business: ANYWHERE: IN THE:STATE- are void, upon consideration. they may be made. THEY MUST BE.INJU.RIOUSI TO.THE.PUBLIC,;ancl no good:reason,.can be-shown why one individual should thus fetter himself, or' another individual should contractJfor..the restraint." In Lawrence vs. Kidder, 10 Barbour, 647, the — coult by Judge Selden say: " That;:contra-cts. in restraint of trade, WHICH EMBRACE T.HE' ENTIRE" KINGDOM OR STATE, are —void,.is a doctrine coeval with, the common law. It makes no difference -whether the contract is or is not limited in respect of time, whether the restraint be for one month or. for life, if it be general and unlimited with-respect, the. contract is absolutely void, and no circumstances- whatever can justify or uphold it." Again on page 649,. " While contracts which thus go to the. restraint of trade THROUGHOUT AN ENTIRE STATE OR COUNTRY are uniformly void, those which impose restraint upon it only in a particular town or district are sometimes. held valid." And on:page 653, of same case.: " The next question is, whether in passing: upon contracts.of this description, we: are to confine our view to our own, State, or whether we: are- to. look, at the whole United States, as constituting a, single State, or Nation. In other words, whether the same rules are tofbe.applied. toa contract embracing the State of New York alone,, as by the common law has always been applied to those embraceing the whole territory of GCreat Britain.. This' quesotion, involves; a variety of considerations,:and admits, perhaps, of considerable discussion. But there- are one or two leading: ideas which, in my'view, are decisive' of' it. In the first place, the people of this- State have. no. control over; or influence upon,. the. municipal. laws of other St'ates. They may, if they please, impose the most burdensome restrictions upon particular trades. We cannot say, therefore, that a restraint which, is' coiextensive with.. this. State.'leaves. the residueof the UTnion open' to:the party to.pursue, unrestrained, the same trade. Again.': it is, repugnant: to the general fram'-e and policy of our government: to, regard. the Unions in.respect to our ordinary-in

Page  17 -:ternal and domestic interests, -as one consolidclated nation. For all these purposes each State;is a separate community with >separate -and independent:public interests. It is by no means thesame.thing to the people of this. State, whether an individual carries-on histrade -within-or without its borders. I am, therefore, of'the opinion, independent.of authority, that a contract; prohibiting'to -an individual the pursuit of any trade or employment throughout the State.of New York, "should be'regarded in total restraint of trade within, the..rule- of~ the common'law." In Van Marter vs. Babcock,:23 Barbour, 636, it was said: -" of no consequence ito the public where a -man carries on his;trade or.occupation within the State, provided he is not prohibited from doing so at-all," &c. JIn Dunlap -vs. Gregory, 10 New York, 244, it was'held that "contracts, 1upon whatever consideration tmade,'which go to constraint.of trade, such- as obligate a man not to pursue "his occupation — or:exercise ANYWHERE INN THE'STATE,'are'void." -In Taylor vs. Blanchard, 13 Allen, 370, decided in'1866, the plaintiff and defendant entered into co-partnership in the art, trade:and business -of!manufacturing and.-selling shoe-cutters and all:things;thereto:'belonging, for one year, and as much longer-as they should agree. The co-partnership articles contained -a covenant on the part of Blanchard.that at whatever time the partnership,"' he, the: said Blanchard, shall not, nor will not,.:at any. time or'times hereafter, either:alone or-jointly, with'ior as agent for anqy.person whomsoever, set up or exercise,,or -carry on the said business of manufacturing'and selling shoe-cutters at any pl'ace w.ithin the aforesaid:commonwealth df Massachusetts." It' appeared in:the case that the manufactur, c-of hoe-cutters''s-'an art which can ionly be carried on by persons instructeld in;the same, and that at the date of the agreement the-plaintiff had been for many years engaged in that,business -in Massachusetts,:and that the business was then confined:to -r pl-aintiff and three other persons:; that therplain;tiff -was then doing a large and'prfit'able business in:such manufacture'and sale, and,that-the defendaint was- wholly ignorant of the business. The:court, after stating that the law had' always regarded' moD

Page  18 18 nopolies as hostile to the rights and interests of the public, and that one method for the establishment of monopolies was by private'contracts in which one of the parties agreed not to engage in some specified business, proceeded as follows:' The plaintiff contends that in this country a restraint ought not to be held void unless it extends throughout the United States, because they are one country in respect to trade and business. But we cannot regard this view as just. A MONOPOLY EXTENDING THROUGHOUT THE STATE MAY BE AS REALLY INJURIOUS TO THE PEOPLE OF THE STATE AS IF IT EXTENDED THROUGHOUT THE WHOLE COUNTRY. ** * The plaintiff also contends that the ristriction in this case is reasonable, because the territory of Massachusetts is comparatively small, and the business is the manufacture of an article used only by manufacturers of shoes. BUT WE DO NOT THINK THAT THE EXTENT OF TERRITORY EMBRACED IN A STATE AFFECTS THE PRINCIPLE. WHATEVER MAY BE THE EXTENT OF THE STATE, THE MONOPOLY RESTRICTS THE CITIZEN FROM PURSUING HIS BUSINESS, kt'YLESS HE TRANSFERS HIS RESIDENCE AND HIS ALLEGIANCE TO SOME OTHER STATE OR COUNTRY. Its tendency is to drive business and citizens who are skilled in business fromn this State to other States. If one is not at liberty to carry on his business here, but is at liberty to do so elsewhere, he will be likely to go elsewhere, and employ others to go with him." And therefore the court held the contract void. The considerations of public policy in such cases are well presented by Judge Morton, in Alger vs. Thatcher, 19 Pick., 54, a case Which appears to have been elaborately argued by counsel and much considered by the court. In Lange vs. Werk, 2 Ohio State Rep., 519, 528, (which the learned editors of Smith's Leading Cases call a leading American case on the subject, (1 Smith's Leading Cases, 658,) the court say, after a review of the cases: "These cases fully justify the conclusion that a contract in restraint of trade can only be enforced when it is made to appear from the pleadings and proofs, 1st, that the restraint is partial; 2d, that it is founded upon a valuable consideration; and 3d, that it is ieasonable and not oppressive. In respect to the LAST of these requisites, Chief Justice Tindal, in Horner vs. Graves, says: " we cannot see how a better test can

Page  19 19 be applied to the question, whether reasonable or not, than by considering whether the restraint is such only as to afford a fair protection to the interests of the party in whose favor it is given, and not so large as to interfere with the interests of the public. Whatever restraint is larger than the necessary protection of the party can be of no benefit to either; it can only be oppression, and if oppression, it is, in the eye of the law, unreasonable. Whatever is injurious to the public is void, on the ground of public policy.'" And on page 530 —531, the Supreme Court of Ohio further says: " No case is to be found where such a contract has been upheld which covered the whole of England or a State of this Union." In Bowser vs. Bliss, 7 Blackford, 346, the Supreme Court of Indiana say: " There is this distinction on this subject: when the contract is for the general. restraint of any business it is illegal; but it is otherwise if the restraint be partial and reasonable." In California it is also held that a contract restraining a party from carrying on his business in the State is void, as against public policy. Wright vs. Ryder, 36 California, 357. More vs. Bonnet, 40 California, 251. In the case of the Oregon Steam Navigation Company vs. Winsor, decided at the last term of the Supreme Court of the United States, and reported in vol. 6, Chicago Legal News, 357, (and in 18th Wallace, probably,) Judge Bradley said: " A contract, even on good consideration, not to use a trade anywhere in England, is held void in that country; and he adds, that the application of the rule that a general restraint of trade is void, is more difficult than a clear understanding of it, and that in this country, especially, where State lines interpose such a slight barrier to social and business intercourse, it is often difficult to decide whether a contract not to exercise a trade in a particular State, is, or is not within the rule. It has been generally held to be so." He says, " on the ground that it would compel a man thus bound to transfer his residence and allegiance to another State in order to pursue his avocation." Judge Bradley then proceeds to say that this mode of applying the rule must be received with some caution; that this is substantially one: country in matters of trade and business, and

Page  20 20 rthat tcases may:arise in which it would involve.too:narrow a,view of the subject -to condemn as invalid a contract not to carry on.a particular wbusiness within a partioular State. lHe then sup-.poses.a cease of.two partners engaged in the manufacture of:a.certain,article bya:secret process, and afterwards separating under -a contract that one of.them shall. not. sell the.manufactured marticle in. Massachusettsl.-where the other xresides and.does business,.and;that'the;latter -shall not sell the. article in.New York where his. associate and carry on business: and asks:'"Can.there be any doubt.that such.a cointract would.b.evalid:?" We answer the question —no. But why would itb;e valid? Because, in the first place, the contract supposed, relates to a secret, which is.a -well-understood exception to the -rule on the subject-of re-.straints. -Bryson vs. Whitehead, 1 Simons.& Stuart,.74.,Morrison vs. Moat, 9 Hare,:241, 6 Eng. L.& Eq., 14. Taylor vs. Blanchard, 1.3 Allen, 374,.2 Story Eq. Juris., sec. 952. Morrison.vs..Moat,-9 Eng. L. and Eq., 182..Hard vs..Seeley, 47 Barb., 428, 4434. And because, in the second place, the case put contemplates a partnership dissolution and partition, and that each party should continue-to carry on his business. freely, the State of his chosen residence.; and that therefore the caution:to which theJudge xeafers has - been duly.observed in the decisions, — without wn or ~impairing:the:rule for -which we tcontend. On r.eferring ato.the -facts on which- the: court was called to adjudicate tin.the case last mentioned, it is difficult-to.see -how any question under the-law, restraints of itrade was properly in the case. It:appeared.that-the California Steam:Navigation Company, aCalifornia corporation, "engaged in -navigating the waters of California, sold to-the plaintiff, (which was: an Oregon corporation, eigaged in -the on. the;CxGolumbia -river and its branches,.) the::steamer ".New World,".and- took from the plaintiff acontract that the plaintiff, "';the Oregon (Company,) -should not run or emplQy, -or -suffer to be run or employed, the said steamer, on.any of the waters of the State of.California for ten -years; and subsequently the Oregon.Company sold -the same steamer to the.defendants, and took from.them a icontract that: it should not berunon any. of the waters of the -State. of California, or the Columbia river and,its tributaries.for ten years. At the time of

Page  21 21 th.e-e sales; and contracts the California company was engaged:in navigating California -waters exclusively, and-the.Oregon Company -was in -like manner engaged exclusively in navigatilng the Columbia and its branches, and at the of'the -contract i'the defendants were engaged in navigating the wvaters of Puget Sound, and WERE IN -NO WESE ENGAGED) -i.n -the navigation of the waters of Oreg-on or Cali.fornia, or of any of'the waters described i-n the stipulaiion "'It. wil be observed that the contract did not restrain the seller at all; that it did not restrain the buyers from navigating any waters whatever, with as mlany vessels as they pleased, (except the single steamboat purchased;) and as to that boat, there was no restraint whatever in the places where the buyers were conducting their'business, but only where thleywere not. In the language of Judge Bradley, referring to the first contract: "It involved no transfer of residence or allegiance on the pai't of the vendee in order to pursue its employment, nor any cessation or diminution of its business whatever." And as to the contract hetween the plaintiff and the defendants, Judge Bradley said: "The stipulation stands on the same ground and reason as did the first stipulation'between the California and Oregon Compaunies.' In other words, the restraint was not upon the purchasers personaltly, in their business, but rather against the use by the purchasers of the steamboat, in a new business, in another state. The reasons on which the rule as to restraints are chiefly founded of course had no application to such a case. If Beal had been a resident of Texas, and in the printing business there, and had purchased these printing presses of Chase, a resident of Michigan, and'had agreed with Chase that he would not use the identical presses in Michigan, there would have been no interference with occupation, and no necessity for a change of residence to another state, in order to carry on the business of the obligated party; and each state would have continued to have as fully as before the contract, the unfettered industry of its own citizens, So,if Chase had in the case last supposed covenanted not to enae in the printing business in'rexas, it would not have restrained him

Page  22 22 from his occupation in Michigan, nor would it have been a general restraint within the rule for which we contend. Smith, in his valuable work on Contracts, page 210, says that a covenant or promise not to carry on a trade within the limits of England is totally'~oid. Story says: " The known and established distinction is between such bargains and contracts as are in general restraint of trade, and such as are in restraint of it only as to particular places or persons, * *. The former are universally prohibited" — 1 Story, Eq., Juris., 292. It being agreed that the common law declares a contract restraining an Englishman from pursuing his accustomed occupation within the limits of England to be void, I submit that there are as strong if not stronger reasons for applying the same rule to each of the states in this country. England is only a political division of the " United Kingdom of Great Britain and Ireland." It is a very small part in territorial extent of the British Empire. England, Scotland, Ireland, and Wales, to say nothing of vast colonial possessions which are by the theory of the British Government subject to a single executive and a single parliament. This consolidated legislative body has plenarv legislative powers, but with us, each state has its own separate legislature, executive, and judiciary, while the Congress has very limited powers in matters of domestic and internal legislation within a state. These belong to the several states. Tl.e law hich governs the validity of contracts, which regulates commercial papers and business transactions generally; which guards and regulates the domestic relations and the rights of persons, which determines the rules of descent and fixes the tenure of lands; the law under which property is acquired, protected, and transmitted is almost entirely state law. Is it claimed that the United States Congress has any power of legislation over the subject of restraining contracts (like the one here in controversy, between citizens of the same state and intended to operate only within that state? ('an Congress regulate the internal trade or commerce of a state? Is it doubted that in the absence of prohibitions in state constitutions, it is within the legislative power of each state to alter or abolish the common law on this subject, and to make general restraints

Page  23 23 hereafter lawful, or to make partial as well as general restraints of trade hereafter unlawful? I submit whether this contract is an unlawful restraint of occupation belongs to state and not to national jurisprudence. Each state has, and lawfully may have, its own internal policy for the encouragement of industry within it, and for the protection of its citizens against improvident bargains, as well as against the rapacity or greed of other citizens. A State may lawfully and properly, by its public policy, subject of course to constitutional restrictions, if any, make itself, or strive to make itself, a more desirahle residence and place of business for its citizens and others, than any other State. One State may, as a matter of State policy, lawfully provide that hereafter contracts made between its citizens, less than twenty-five years of age, shall be void. Another State that all contracts allowing interest above a specified rate, shall be void. And another may provide that it shall be lawful to collect such rates of interest as the parties may have agreed to pay. The power to alter the common law resides in the legislatures of the several States and not in the national legislature in this country and this leads me to say that the common law in force in this country is State law and not United States law. The United States law is wholly constitutional and statutory except so far as the Federal Courts adminisler the laws of the States. In Wheaton vs. Peters, 8 Peters, 658, (11 Supreme Court Decisions, 229) the Supreme Court of the United States said:'It is clear there can be no common law of the United States. The Federal Government is composed of twentyfour sovereign and indepe.ndent States; each of which may have its local usages, customs, and common law. There is no principle which pervades the Union and has the authority of law that is not embodied in the constitution or laws of the Union. The comlmon law could be madel a part of our Federal system only by legislative adoption. When, therefore, a common law right is asserted, we must lok to the State where the controversy originated." And Judge McLean, sitting in Michigan, said, in Loomis vs. Clarke, 2 McLean, 572: "There is no unwritten or common law of the U1'on. This rule of action is found in the different States."

Page  24 24 In the earlier case of United States vs. Hudson, 7, Cranch, 34, the Court had decided that all exercise of criminmal jurisdiction in:common law cases is not within the implied po~wers of the courts of the United States. The Judge in the -court below seems to have:thought,that,though the common law on this subject of restrai;ts by contract as found in the " older reports," tlould render the icontract voiMd, it had been modified by.tihe courts by recent decisions, (Record, 93) hbut'he fai.led to point to the decisions.which w.ould,accomplish such a result. The common law foce here:as in some sort of an inhelitBace -of the ipeople of the State -of Michigan, and because it has been recognized by the legislature and the courts from the beginning, anl because -the constitutions of the State have adopted it. The present.constit ution provides'that " the COMMON LAW and the statute in:force, not repugnant to this constitution, shall remain in force until they expire by their own limitation, or are altered or ~repealed by the legislature." Schedule, Section.1. 2 Douglass, 184, 1-89. The common law here is as.completely State law as are th~e State statutes..Complainant's counsel will concede that a general:restraint is void. Can there be a:ny doubt that -WITHIN THE -MEANING -OF A STATE LAW a restraint which covers the whole State -is A GENERAL RESTRAINT.? Are the *courts of -Michigan -to -construe a contract between citiz ens.of this State:which restrain-s one:of them from pursuing his ioacupation and trade, at all, in Miohigain, as only a limited and partial restraint within the meaning of the laws of Michigan? In the United States -vs. De:Witt, 9,Wallace, 41, 43, 44, tlhe Court said in 1869: "' The questions certified,resolve themselves into this: Has Congress power under the constitutionto plohibit trade,witbhin the limits tof a Statei? That Congress has power to regulate commerce with?foreign inations:and among the several States,. and. with Indian tribes, the constitution expressly declares. But.his express grant of:powner has always been understood as limited by.its terms; and as:a virtual.denial iof any power to interfere w;th the internal trade and-business:of the separate States; -except indeed:as a necessary and ~proper means for carrying into execution some other power power expressly granted."

Page  25 25 I conclude then, that the question in this case is a State question, and to be determined by considerations applicable to Michigan alone. In this case it might have been competent for Chase to have a,'eed with Beal that he would not ii'ringe the copyrights sold within the State of Michigan, or within the United -States, (because monopolies in copyrights and patents are secured to the o-,iers,) thougn such a contract would have been entirely useless under the copyright laws. It might have been competent to agree not to pursue his business in Texas or Japan, if Beal's interests and the circumstances of the contract rendered such a 1 istriction reasonable and fair. But I submit that subject to the exceptions stated, (including the case of the sale of a secret) a cont act rc-trair;ng a party from pr suing his accustomed occupation in b;s own State is utterly and under all circumstances void. Il the case of MW iittaker vs. Howe, 3 Beavan, 383, decided in 1841, the Master of the Rolls held that an agreement by a solicitor in consideration of five thousand pounds not to practice as solicitor or atto. ney for twenty years in any part of Great Britain is valid. Not only does that case seem to be destitute of precedent authority for its support, but it is against the uniform langu. e of all the other books. I cannot find that it has ever been follow;i or cited with approbation by any Court or Judge. In 1 Smith's Leading Cases, 649, (s'-.Lh American edition, marginal page 516,) that learned and accurate writer said: "The case goes further than any other, and its correctness may, perhaps, be qucstioned." Mr. Kerr, in' s excellent book on Injunctions, pa e 608, says that the case of Whittaker vs. Howe, cannot be considered sound law. It is quite inconsistent with Ward vs. Byrnh, 5 Meeson & Welsby, 048, which was decided after mature deliberation. In 1847, in Nicholls vs. Stretton, 10, Adolphus & Ellis, new series, 346, 353, one of the counsel referred to WVtaittaker vs. Howe, on the argument, but Judge Patteson said he did not see how the case of Ward vs. B3; ne could be Reconciled with that case. Ward vs. Byrnb having been decided in Exchequer Chamber, is a case of the highest authority. Whittaker vs. Howe is very properly placed byRiedsRid in the F

Page  26 26 list of overruled and doubted cases. Redfield's Overruled Cases, 540. He refers to the note to Tallis vs. Tallis, 16 Juris., 744, 746, (1852,) to which I have not had access. It seems difficult to maintain the decision in Whittaker vs. Howe without a total abandonment of the rule as to general restraints, (except on the theory that the practice of the law is not one of the useful occupations!) On that distinction in Harrison vs. Lockhart, 25 Indiana, 112. it was held that a contract not to engage in the sale of intoxicating liquors was valid. There are these further differences between Whittaker vs. Howe and this case: The occupation of an attorney and solicitor takes a larger territory than almost any other business, and in Whittaker vs. Howe the consideration for the restraint was large, ($25,000,) while here it was nothing. Before leaving this branch of the case it is proper to suggest that the cases in which the test of validity has been declared by the courts to be: Is the restraint consi lering the circumstances, fair and reasonable, and no more than the protection of the obligee or promisee requires, and is it founded on a valuable consideration? —have been cases of limited restraint; and that the application of such a test as the sole one to such cases does not at all impugn the proposition that a restraint covering the whole State is ipso facto void. IIL The covenant not to engage in the printing and publishing business in Michigan is void even under the law as to limited restraints, because it is unreasonable as between the parties, and is broader and more burdensome to Chase than is necessary for the fair protection of Beal. Hubbard vs. Miller, 27, Michigan, 20, 23. In Horner vs. Graves,7 Bingham, 743, decided in 1831, (same case 20 Eng. Comn. Law Rep., 330,) the defendant who was a dentist, contracted not to carry on the b)usiness-of his profession within one hundred miles of the cit3 of York. Chief Justice Tindall in giving the judgment of the Court arresting judgment on the ground that the contract was void, said: " We do not see

Page  27 27 how a better test can be applied to the question than by considering whether the restraint is such ONLY ab to afford a fair protection to the interest of the party in favor of whom it is given, and not so large as to interfere with the interests of the public. Whatever restraint is larger than the NECESSARY protection of the party, can be of no benefit tu either; it can only be oppressive, and if oppressive, it is, in the eye of the law, unreasonable. Whatever is injurious to the interests of the public is void on the ground of public policy." In Hitchcock vs. Coker, 6 Adolphus & Ellis, 438, 443, (33 Eng. Com. Law, 241, 244,) decided in 1837, the contract was that defendant would not directly or indirectly carry on the business of a chemist or druggist in the town of Taunton, or within three mniles thereof. Erle appeared as one of the counsel for defendant: Chief Justice Denman in giving the judgment of the court of King's Bench holding the contract void after stating that " the law upon this subject has been setled by a series of decisions that an agreement for a partial and reasonable restraint of trade upon an adequate consideration is binding, but that an agreement for general restraint is illegal;" and after referring to Horner vs. Graves, said: " It appears quite sae'e to hold that the law will not enforce any agreemeht for curtailing the rights b-thl~-of the public and the contracting party, without it be necessary for the protection of him in whose favor it was made," On error in the same case in the Exchequer Chal:ber the Court agreed to the principle laid down in the King's::Bench, but held that in the particular case the restraint was n'd0 in point of fact unreasonable in extent. See also, Mallan vs. May, 11 Meeson & Welsby, 652, 666, 667. Avery vs. Langford, Kay, 663. Allsopp vs. Wheatcraft, Law Rep., 15 Eq. Cases, 59. Same case, 5 Eng. Rep. by Moak, 714, 718, 719. In Gale vs. Reed, 8 East, 86, Lord Ellenborough said: "The restraint on one side meant to be enforced should in reason be coextensive only with the benefits meant to be enjoyed oil the other." Young vs. Timmins, 1 Cromp. & Jervis, 331, 340, 343.

Page  28 28 Ward vs. Byrne, 5 Meeson & Welsby, 547, 558, 559, 561, 562. Mitchell vs. Reynolds, 1 Peere Williams, 181. Lange vs. Werk, 2 Ohio St. Rep., 519. Grasselli vs. Lowden, 11 Ohio St. Rep., 349. Crawford vs. Wick, 18 Ohio St. Rep., 190. Nobles vs. Bates, 7 Cawen, 309. Chappel vs. Brockway, 21 Wend, 158. Ross vs. Sedgbeer, 21 Wend, 165. Hooker vs. Vandewater, 4 Denio, 349. Stanton vs. Allen, 4 Denio, 434. Lawrence vs. Kidder, 10 Barbour, 641, 649, 651, 552. Mott vs. Mott, 11 Barbour, 127. Holbrook vs. Waters, 9 Howard, Pr. Rep.. Dunlop vs. Gregory, 10 N. Y., 241, 244. Keeler vs. Taylor, 53 Pa. St., 468, 469. McClurg's Appeal, 58 Pa. St., 51. Guerand vs. Dandelett, 32 Md., 561. Same case, 3d American Rep., 164, 167. Brewer vs. Marshall, 4 Green, (N. J.,) 537. sea- ~. e. -inz, 11 In-TV-, 1. Raeyy1lds rs_ N;iehele, 12 lIa, $99. Kellogg vs. Larkin, 3 Chandler, (Wis.,) 133. Holmes vs. Martin, 10 Ga., 503. Beard vs. Dennis, 6 Ind., 204. In Mallan vs. May, 11 Meeson & Welsby 653, 666, the language of Chief Justice Tindal in Homer vs Graves, above quoted, was re affirmed in 1843. In that case the covenants were twofold, 1st, That the defendant whom the plaintiffs took into their service as assistant in the business of surgeon dentists, for four years, would not after the expiration of that time carry on that business in London, and 2nd, That the defendant would not carry on that business in any of the towns of England or Scotland, where the plaintiff might have been practicing before the expiration of that term. The Court held the covenant good as to London, but that the covenant restraining the defendant from practicing in any of the towns of England or Scotland, where the plaintiffs might have been practicing, was void. The Court said: " This covenant goes

Page  29 much beyond what the protection of any interests of the plaintiffs could reasonably require, and puts into their hands the power of preventing the defendant from practicing anywhere. We are therefore of the opinion that it is an unreasonable restriction, arid that the defendant is entitled to our judgment on the demurer on the second breach." The Court of Appeals of Newv York, in Dunlap vs Gregory, said: "The contract, to be upheld, must appear from special circumstances to be reasonable, and useful, and THE RESTRAINT OF THE COVENANTOR MUST NOT BE LARGER THAN IS NEOESSARY FOR THE PROTECTION OF THE COVENANTEE IN THE ENJOYMENT OF HIS TRADE OR BUSINESS," 10 N. Y., 244. In Morse Twist Drill:and Machine Co. vs Morse, 103 Mass, 73, 74, 75, the defendant in order to induce the organization of the company, sold to the plaintiff two patents, which had been issued to him, and agreed to transfer to them all improvements, new modes of manufacture, and inventions relating to the subject matter of the patents, which he might make or invent, and that he would use his best efforts for the prefecting of improvements in the business and manufacture; and covenanted that he would do no act that might injure the company or its. business, and that he would at no time aid, assist, or encourage any competition against the:Company. The defendant also agreed to give his whole time to the Company for three years, The consideration for these assignments and covenants was ten thousand dollars, and;$1,500 per year. The Court expresly affirmed the decision in Taylor & Blanchiard,.13 Allen, 370, and said that the question was whether the rule laid down in that case extended to a case like the one in the Morse case, and- then proceeded to say: that the rule, as to restraints, had never been extended to a business practiced by a' patent, or to a business which is a secret not known to the public, because the public had no rights in such a case. Those considerations of course disposed of all questions touching the validity of the contract, except the part wherein the defendant coveniatted that he would do- nothing to the injury of the company, and that he would not assist or encourage competition against the company. G

Page  30 30 The case might well have -have beeen disposed of on the principles applicable to patents and secrets, as those were the foundation subjects of the contract, to which all the rest was merely incidental. But there is nothing in that case which sustains the contract in this. In the Morse case the restraint was carefully bounded by the limits of the vendee's interests under the purchase. It could not be said in that case that the restraint was broader than the vendor's protection required. It was so expressly limited in its terms that it could not possibly extend beyond such protection. The restraint did not compel the defendant to abandon his trade or calling as an inventor and machinist. It only restricted him fiom competing in the manufacture of one specific article. It left open to him the whole field of mechanics and mechanism besides. It was as if a druggist,, having compounded a drug, supposed to possess medlcinal value, should sell his stock to another, and agree not to compete with the purchaser in the sale of that drug. The vendor could still pursue his occupation as a druggist, and sell every. other article known in the Materia Medica, and the chief reasons on which the rule for which we contend is founded, -would not exist in such a case. It would be a case of limited and partial restraint only, and with no POSSIBILITY of needless.. and useless,.oppression. The public would still have the benefit of the industry and skill of the citizens in his accustomed oceupation. In other words it would be a LIMITED restraint, not taking the covenantor out of his calling, and not greater than was necessarfor the protection of the covenantee; and it matters not, perhaps, whether such a limitation be accomplished by territorial bounds, or by any other, so long as the covenantor's right to pursue his general calling in the State, and the public interests are.protected from invasion. The cases referred to in 103 Mass. 76, from the Weekly Reporter and The Jurist, are not found in the regular reports, and therefore I have not seen them; but it is apparent from the statement of them in the Massachusetts case that the restraints were limited in character, and did not drive the parties from their principal calling. So that whether those cases were rightly decided or not, they are distinguishable from Chase's case, by the two

Page  31 31 important facts, 1st, that in each of those cases the restraint was strictly limited to the prevention of competition, with the single subject matter of the sale-limited to the needed protection of the purchaser; and 2nd, that in each of them the covenantor was left at liberty to pursue..his principal business. For instance, in Ainsworth vs. Bentley, the defendant, a geiieral publisher, agreed that he would not publish another periodical of the same character as " Bentley's Miscellan=y." It he had agreed not to publish anything whatever, the case would have been parallel. But the whole domain of printing was left open to him, except the publication of a magazine, like' Bentle3's iMiscellany." The following cases were restraints as to secrets, which, as before stated, are exceptions to the rule: Bryson vs. Whitehead, 1 Sim, a'nd Stuart, 74. Morrison vs. Moat,.9 Hare, 241. Same case, 6 English, L & Eq., 14, and 11 English L. & Eq., 182. Leather Cloth Co. vs. Lorsont, Law Rep., 9 Eq, 345, 354..rickery vs. Welch, 19 Pick., 523. Peabody vs. Norfolk, 98 Mass., 452, 459, 460. Jarvis vs. Peck, 10 Paige, 118. Alcock vs. Giberton, 5 Duer, 76. Hart vs. Seeley,-47 Barb., 428. In Leather Cloth Co. vs. Lorsont, the Vice Chancellor, on page 354, says: "Now, in this case, the subject matter of the contract was a particular manufacture carried on, partly under patents and partly by processes, which it is to be assumed were not known except to the vendors themselves, and their agents and workmen. THAT BEING THE SUBJECT MATTER OF THE CONTRACT, the stipulation is, that the:vendors will not set up a similar manufacture in Europe, and will not communicate the process of the manufacture anywhere,, so as to interfere with the enjoyment by the intended company, of the benefits thereby agreed to be purchased. This case, as it seems to me, much more resembles the sale of a SECRET, which has been held: to be perfectly good, with a stipulation unlimited as to time and place. as to communicating the secret or dealing with it-so interfere with the purchaser. It is settled by authority that a man may bind himself not to

Page  32 32 communicate that process to anybody else, anywhere, under any circumstances, in any part of the world." And on THAT GRCUND the Vice Chancellor supported the contract. It is apparent that it could not have been supported on any other ground, without overturning the decisions of all the Common Law Judges in Exchequer Chamber on a common law question. There. are, no doubt, dicta in the opinion of the Vice Chancellor, which it is difficult to reconcile with the other cases, unless limited to the case of a secret, which was, in fact, the ONLY case before the Court. In Allsopp vs. Wheatcraft, 15 Eq. cases, 59, 64, 65, decided in 1872, the defendant had entered into the service of the plaintiffs (the plaintiffs being brewers, at Burton,) under a contract whereby he agreed that he would not at any time. during his said service, or within two years.after quitting the: plaintiff's service, either directly or indirectly sell, procure orders for the sale, or recommend, or be in anywise concerned or engaged in the sale' or recommendation of any Burton ale, or beer, or porter, or any brewed at that place, or any offered for sale as such, other than the ale, beer or porter brewed by the plaintiffs. After remaining in the service of plaintiffs for five. years the defendant left them and violated the terms of his contract by entering the service of other brewers at Burton and soliciting orders. for other ales than plaintiffs'. Vice Chancellor Wickens refused to- grant an injunction, and held the contract void. He declined to adopt the dicta in Leather Cloth Co. vs. Lorsont as applicable to such a case, and: explained that there were expressions in the.contract in Leather. Cloth Co. case limiting the generality of the contract, and that it was, in substance, a case of a different class- from Allsop vs. Wheatcroft, since the. restriction against trading in the former case was only a consequence of a clearly lawftil restriction against divulging a secret. It was argued in Allsopp vs. Wheatcroft that under the covenant the defendant could not act as a beer merchant, beer bottler, a cellarman, publican, barman or waiter,; that such a sweeping restraint was: not necessary for the plaintiff's protection, and that the covenant was therefore unreasonable and void, independent of considerations of space, The Vice Chancellor sustained that view

Page  33 by his judgment in the case. He also held that the restraint was. too general as to space. The principles of that decision are fatal to this covenant which prohibits Chase from engaging in the printing and publishing business, directly or indirectly, in the State of Michigan, &c. That is to say, he cannot be type-setter, proofieader, folder, pressman, or engineer. He cannot act in the most trivial or subordinate positions. He could:not act as a newsboy on-the streets. He is prohibited from starting a weekly newspaper or using a handpress, or doing the smallest job of printing in the most obscure town or in the most remote or isolated part of the State, though Mr. Beal or his printing establishment had never been:dreamed of there. He cannot go to Marquette or Shanty Plains and set up the types f:r a hand-bill, " directly or indirectly." Aceording to the decree in this case, he cannot own a dollar's worth of stock in a printing company anywhere in the State, though;he may give the business no person-al attention whatever, or even sell his own manuscript -works to others and take his compensation iln the ordinary way of royalty. He cannot set type for a book in Hebrew -or Sanscrit, or in any department of printing, though Beal may not be able or may nlot undertake to do such work at all, and though there may be no possibiIity of injury to Beal from Chase's:doing it. Will it -be said that.a restraint so sweeping and despotic as this, is necessary for the fair and.reasonable protection of Beal- in the matter of his purchase:? It surely is not, whether wue look at the extent of territory covered by it or at the generality of the restrai'nt itself without reference to space. The restraint is oppressive and unreasonable, and the- covenant being entire, it is therefore wholly void. If the covenant had been sufficientlty its nature and had "extendec to the county of WVasnhtenaw, or,the State divisibly, it might, under the authority of some of the oases, be so divided and held good as to one territory, though void as to -the other. (Though, on this point, More vs. Bonnett, 40 iCalifornia, 251, seems based on the better reason.) But 1there is only one territory designated in this:contract, and that is the State of Michigan.'It is good for the whole State,:or for Ino part 6f it. To hold otherwise would -make contract for the parties which they never made themselves. H

Page  34 34 When we look at the facts of this case the unreasonableness of the covenant is still more aplarent than when we consider it abstractly.. The case made by the bill is that it was the intention of the contract to restrain Chase altogether from engaging in the plinting business.again. The bill goes even further and alleges distinctly that Chase " assured 3 our orator and AGREED with him that upon said sale tbeing made he WOULD RETIRE AL1 OGETHER RROM SUCH business." etc. Recortl, page 7. The answer denies this: and I only refer it to show that on the complainant's allegations a sweeping general restraint was intended, such as no Judge by decisions or dictum, has ever said anything to sanction. When we refer to the testimony, what, at the time of the sale, was the extent of the printing business of Dr. Chase? The answers avered that it extended to only a small portion of the State, and was chiefly in Washteraw county. It therefore devolved on Beal, if he claims it to be more extensive, to show it by the proofs. It cannot be supposed that the covenant was intended to prohibit Chase from printing or publishing the COPYRIGHT books he sold to Beal, because the coppright laws afforded ample protection and the best possible prohibitions against that. There is no pretence in the case of any actual or contemplated infringement of copyright. There was only the newspaper and the job printing on which such a covenant could be of value, or which could have been within the inte'nt of the parties; and, therefore, in considering the business to be protected by the restraint, reference is to be had to the job printing and newspaper alone. The newspaper, the Peninsular Courier and Family Visitant. was a weekly newspaper of small circulation, and that chiefly confined to Washtenaw county. That is Chase's testimony. Record, 272, 273. It is also the testimony of Beal: " Question. What was the circulation of the Peninsular Courier and Visitant at the time you took possession of it?"' Answer. [ think between 1400 and 1500: my recollection of

Page  35 35 it might be more or less than 1500. I think it was about 1500. * X +,, "Question. Where was the circulation chiefly? " "Answer. Chiefly in Washtenaw county." Record, 186. Beal further testified that at the time he gave his evidence, (Spring of 1874,) the circulation was not so large as when the injunction was granted, (July, 1873). See Record, 187. So local and obscure was and is the'newspaper, that Beal put in it an advertisement of a new edition of his book which he swears he was very careful to keep from the knowledge of his agents, because, as he testifies, he knew that if his agents got hold of the advertisement it might stop the sale of his book, (Record, 374) and therefore, to, keep the secret perfectly secure he put the advsrtisement in his newspaper. The job printing was a mere local business, confined chiefly to Washtenaw county, and. was small in amount. The bill does not show how evtensive it was, it seeming to be the purpose of the complainant throughout the case, to conceal its amount, and to aggregate it with the sales of the copyright book. But Chase's answer shows what its character was. (Record, page 48). The gross amount of job work done for parties living outside of Washtenaw county from July, 1867, to April 1st, 1869, was only eighteen hundred and twelve dollars and seventy-two cents, ($1,812.72). During the same period the work done for parties living within that county was about ten times as much, being ($18,842.80). See testimony of Dr. Chase, Record, 273, 274. From September 2d, 1869, to March, 1870, the total job printing done by Beal, as successor to Chase, was -$8,232 98, of which only $579 18 was for parties outside Washtenaw county, Record, 403, 404. And from April 1st, 1870, to September 2d, 1870, the total job printing done by Beal was $4,686 67, of which only seventy-three dollars and fifty-five cents ($73 55) was done for parties outside Washtenaw county. Record, page 416. And from September 2d, 1870, to June 7th, 1871, Beal's total job printing, according to his own books, was twelve thousand one hundred and seventeen dollars and ninety-three cents

Page  36 36 ($1.2.1 17 93) of which onily nine.hundred. and fifteen dollar s and ten cents ($915 10) was for parties living outside of Washtenaw county. Record, page 401. So. that.from. the time of his purchase, August 3.0th, 1869, to Junle 7th 1871, during a period of more than:tswenty-one months, the total job printing business done by Beal, which was not Washstenaw county business, was only fifteen. hundred and sixtyseven, dollars and eighty-three cents ($1,567 83,) being only about seventy dollars per month; and in the last fourteen months of that time the job printing lrom outside Washtenaw county, was less than fifty dollars a month, counting everyth ing, whether collectable or.not. That is to say, for the twenty-one months following Beal's purchase the printing done for parties outside Washtenaw county was only about six per cent.. of job printing done at the establishment, arid for the period specified before the sale the job printing not belonging to the county was less than ten per cent. And of this small amount of outside work the testimony shows that a large share was for Wayne county. Of the $1,812.72 above mentioned $691.11 was -for Detroit.. Record, page 275. The case shows that prior to the sale to Beal, ninety per.cent of the job printing was for Washtenaw county, and that scarcely anything was done for that part of the State north of the Detroit and Milwaukee Railroad or west of the meridian of Marshall. Record, pages 48, 65, 278, 279. No witness contradicts the figures above given by the witnesses Chase, Watson, and Messrs. Dean, showing the limited amount of job printing from without the county of Washtenaw. Beal called Mr. Clark to prove the amount of outside work from April 1st, 1869, to.August 26, 1869. Record, pages 218 to 223. The aggregate for that period as state(d by Clark, was $3,166.81, as appears by footing up his items, Record, 218 to 223, 226, 2.27, (and which items he states on page 232, were.all he found,) but in that amount were included charges for work;done for Beal himself, for the Diocese of Michigan, ordered by the Rev. Dr. Gillespie, of Ann Arbor; for hotel registers for Ypsilanti and Saline; for the State Agricultural Society on the order of Gilbert,

Page  37 37 of Ypsilanti, chairman of business committee; for Agatha Kalnabach, of Ann Arbor; for Azubia Spring, then of Ann Arbor; for Messrs. Payne & Goodman, for the Michigan Teacher on the order of the member of the firm who then lived at Ypsilanti, etc. The errors pointed out by Dr. Chase's testimony show that the above amount should be reduced by seven hundred and two dollars and thirty-nine cents. It appeared by uncontradicted testimony that of the work included in Clark's list as outside work, all the work for the Methodist conferences was done by the order of J. Mi. Arnold, of Detroit; that one of said Methodist conferences, for printing the proceedings of which Clark included in his list of outside work, held its session at Ann Arbor; that the work for Albion College came to Chase as a Methodist, and after a donation of one huncdred dollars by him to the College, that he got the printing of the proceedings of the Odd Fellows' Grand Lodge because he was a member of the order, and the Secretary, Mr. Sprague, resided in' Ann Arbor, that the Port Huron catalogues were ordered through Mr.. Frazer, formerly of Ann Arbor, and whose father still lived there, that D. B. Briggs, for whom the work on the Romeo Jour. nal was done, went from Ann Arbor; that John Davis & Co., of Chicago, for whom $6 75 worth of work was done, put in steam fixtures for Chase at Ann Arbor, and that the order from Dr. Kidder, of Evanston, Illinois, probably came because Chase was then supporting a young man at that institution being educated for the ministry. See Record, pages 275, 278. It may be mentioned that there is a discrepancy of over $200 between the true aggregate of the items stated by Clark, and the aggregate given by him on page 382. It appears from the figures that the exact per cent of the printing business done for parties outside of Washtenaw county from July 22d, 1867, to April 1,.1869, was only eight and seventy-seven one hundredths per cent. of Chase's job printing business for that period. And that combining the Detroit business of $691.11, done within the same time with the Washtenaw county business, only five and forty-three one hundredths per cent. of Chase's job printing business was done for parties residing out of Washtena-w county or Detroit for the same period, I

Page  38 38 being for one year, eight months, and nine days. Record, 274. It also appears from the uncontradicted figures that the total job printing done by Beal from September 2d, 1869, to June 2(1, 1871, was $25,037.58, (Record, 401, 403, 416,) of which amount there was done for parties residing out of Washtenaw county work to the amount of only $1,586.78 (Record, 401, 404, 426). Showing that of the entire job printing business for that period of one year, nine months, and three days, immediately succeeding the taking possession by Beal, ninety-three and sixty-six one hundredths per cent. was strictly Washtenaw county business, and only six and thirty-four one hundredths per cent. for parties outsidle of Washtenaw co-,ty. It appears that the only counties in the State for residents of which any printing wvhatever was done by the establishment besides Washtenaw, were Livingston, pages 219, 220; Jackson, 219, 220; Monroe, 219; Lenawee, 219; Calhoun, 220, 221, 226; Oakland, 220, 221; Macomb, 220, 221, 223; Genessee, 221; llillsdale, 221, 226; St. Clair, 221, and Wayne, 219, 222, 226, 229, 230, 275. And it will be seen that the business done for parties in most of those counties was very small, and that the whole number of counties, not encluding Washtenaw, was eleven. There were seventy-seven counties in Michigan in 1873, and in sixty-five of them, no resident inhabitant, so far as appears, ever furnished any printing business for this establishment. For some of the eleven counties above mentioned, only a single job was done, and it would be absurd, from the evidence, to consider this establishment as having continuous customers in those counties ordering printing done at that establishment. There are in Michigan 56.451 square miles. The twelve counties above mentioned, including Washtenaw, contain only 7,853 square miles, and therefore it appears that from the counties embracing eighty-six nine- tenths per cent. of the territory of the State, no person has ever given this establishment an order for printing. It clearly appears from the testimony that the job printing was essentially a mere local business, (and we claim that the business of printing is, intrinsically, a mere local business). Even if the copies of the " Recipe Book," printed at this es

Page  39 39 tablishment under copyright, should be taken into consideration in determining the extent of the printing business to which the restraining covenant referred, the local character of the business of printing, as done at that establishment by Chase, would not be changed. That book was printed and published at Ann Arbor, by and for Dr. Chase himself and not on the order of anybody else, and, so far as Dr. Chase was concerned, the sales of the book, (excepting those made to Bancroft, of San Francisco,) were wholly made at Ann Arbor and paid for there. The socalled agents were, in fact, purchasers of the book, who remitted to Ann Arbor payment in full before shipment by Dr. Chase. Dr. Chase's Answer, page 33, and his testimony, pages 287, 288. Dr. Chase, in his testimony, estimated the amount of printing done at the.establishment in question at about one severty-fifth of the printing done in the State. The correctness of this estimate was not disp'hted by any other witness. The testimony of D)r. Chase also showed that sales of the first Recipe book, in Michigan, had nearly ceased before Beal's purchase-the demand having been supplied. It being undisputed law that all restraints of trade and occupation are void if considered in the abstract, or unless under the circumstances shown they appear to be reasonable, fair and necessary for the just protection of the party for whose benefit they are made, and not unnecessarily injurious to the public, it devolved upon Beal (as having the burden of proof cast upon him) to show the necessary facts to warrant the restraint in question. III. The case alleged by the bill is an argreement on the part of Chase to retire altogether from the printing and publishing business. Record, page 7. Nobody will claim such a contract to be valid. Is the complainant entitled to any decree under SUCH A BILL, whatever may be thought of the points heretofore made?

Page  40 IV. The complaintant is debarred firom any relief in equity by his laches and his acquiescence for so long a period in the right of Chase and the company to print and publish, notwithstanding the covenant. Saunders vs. Smith, 3 MIylne & Craig, 711; (14 Eng. C h., 712, 718, 730, 736). Beard vs. Tu':ner, 13 Law Times' Rep., n. s, 747. (Also reported in Cox's Trade Mark Cases, 717). Bovill vs. Crate, Law Rep., I Eq., 387. Lehman vs. McArthur, Law Rep., 3 Ch. App., 496. Hilliard on Injunctions, p. 29, section 43. Kerr on Injunctions, 202, 204, 299, 349. Chase informed Beal of his purpose to engage in the printing busiuess about a year and a half before the organization of the company, had rented a building in Ann Arbor with that object, ordered $8,000 worth of printing material, and was at work setting type for his new receipt book. These facls were well and publicly See Record, 280. After that the company was organized in August, 1872, and had invested $25,000 of paid up capital, hadl been publishing its newspaper eight or nine mouths, had been doing a general printing business, and had been getting out the Second Receipt Book nearly a year, and had published it about four months before the filing of this bill, without any attempt on the part of Beal to enforce this restraining coveneut. See Record, 286, 289. The, company took possession early in August, 1872. Chase had been preparing the Second Receipt Book for publi

Page  41 41 cation with full knowledge of Beal for some years before its publication. Record, 305,-306. It is true that in October, 1872, Beal filed a bill against the defendants to restrain the publication of the Second Receipt Book, on the ground that it was a violation of his rights under the law of. Trade Marks, and that the bill alleged that Chase had made a covenant not to engage ill the printing and publishing business in Michigan, but the bill sought no specific relief beyond the: prevention of the publication of the book. Record, 488 to 491. On the argument of the motion for an injunction on that bill before Judge Higby, Mr. Pond, the counsel for Beal, waived any claim under the restraining contract and stated that they made no contest in that matter. See testimony of Zina P. King, Record, 431. The Ann Arbor Printing and Publishing Company contemplated the publication of a series of mathematical works and other books, and the republication of certain law books, (Record, 413,) and before the filing of this bill had expended between $27,000 and $28,000 (Record, 415). The discontinuance of or its business would produce a very great loss in these expenditures, (Record 304, 415, 399, 400, 409, 410. V. If the restraining covenant was in issue in the first suit, would not the decision of Judge Higby, denying the motion for injunction bar further litigation for its enforcement? A judgment on the faith of admissions or waivers is as conclusive on questions within the scope of the judgment and covered by it as if the result had been reached after controversy. VI. So far as the decision may turn (if it should turn at all,) on any question of veracity between Beal and Chase, a reference to the Record will sufficiently show which is best entitled to credit. J

Page  42 42 For Beal's exhibition of himself, see Record, 195, where, after admitting that he published, February 14th, 1873. the following statement in his newepaper: " This office has had a larger run of job work for Lhe last four months than for any previous four months, for which we feel very thankful; " testified as follows: " Question. Did you say that?"' Answer. Yes, sir; I thought that was a pretty good article, too; I used to get up in the night to read it for ten days after it was out.". Though he testified to the gross receipts as shown by his books, (see page 366, 368,) and though after much equivocation, (see pages 370, 371, 386, 387, 388, 389, 390,) and after claiming that he did not know the amounts of receipts from the'" Recipe Book" and "job printing" separately, he was at last obliged to confess on pages 390, 391, that there was a separate account for each, and that in order to obtain the aggregate receipts, he had in fact, added together the receipts kept separately for each branch of the business, and that the ledger and cash book would show. And on page 391, he confessed that he had made up a statement called for months before by us, (in his first testimony,) but never produced, which would show the receipts for each year of the " Receipe Book" the "job printing," &c., separately. He refused to allow Prof. Watson, Col. Dean, Sedgwick Dean, or Mr. King to determine the amount of sales for the years from August, 1869, to August, 1873, of " Dr. Chase's Recipe's" book by inspection of his books then in court, even in his own presence and in presence of the court; and in this refusal he was sustained by the Circuit Judge. Record, 386, 384, 385. The gentlemen named were experts in book-keepinlg. The record shows that we were unable to obtain any division of the gross receipts claimed, into the appropriate branches of the business, or to test by our own experts the correctness of the general statements made on the part of Beal. The Circuit Judge sustained the objections of Beal's counsel to an investigation of Beal's income returns and the sources of income referred to therein, (pps. 193, 194,) though he permitted copies of the returns to be appended for consideration by this court. See Returns pp. 153 to 154, 248 to 249, 471 to 480.

Page  43 43 The extracts from his paper put in evidence on pages 194, 195, 196, 197, are inconsistent with his claims in this suit. Apprehending that the advertisement of a new edition. of his book in his paper of February 14th, 1873, and in subsequent numbers, (Record 195,) would affect injuriously his case, he claimed that he carefully kept the fact from the knowledge of his agents. He leclined to say whether the distinguished physician referred to in his advertisement on page 196, was Vance or Briggs. (216.) He had heard some talk about the merging of parol negotiations in the written contract, and therefore he says on page 212: "The whole thing was the parol agreement between us, and at.the time, my recollection is the whole thing was a parol agreement, and everything was merged in the parol agreement," &c. According to Beal's own testimony there was no need of the holding out to him of any inducements to buy the establishment. He seems to have seized the opportunity of Chase's convalescence from a severe illness to drive, a hard bargain, not different in character from the one made in the olden time with the poor weaver, which Judge Hull so denounced. See remarks'of Chief Justice Parker on the case in 2 Henry V., reported 1 Peere Williams, 193, and in 1 Smith's Leading Cases, 646, sixth American Edition, (marginal page 514.) See Record 123 to 126. Beal says that he had some talk with Chase about two years before the purchase in which Chase gave him the refusal of the property for ten days; but that at the end of trhe fifth day, Beal declined to take the property, and that Chase told him he was very glad of it; that from that time lie (Beal) watched everything connected with the business; that he *' was sorry all the while;" that Chase " said I had made a mistake that I had not bought him out, and I thought so too; so I didn't have no long talk about it BECAUSE I SEE HE DIDN T CARE ABOUT selling, but I kept watch of everything about the business. I calculated as soon as he got ready to sell, to buy him out." After Chase's illness he wrote Beal about board in Minnesota anfl Beal concluded (so he testifies) that Chase had got ready to sell, "so I wrote him a letter and asked him what he would take for the property. At all events I found out while he was there

Page  44 44 tlltt lie wanlltel to sell badly AND HE MIGHT BACK OUT IN A HURRY, so I calculated I should blSy him out and when I got down here I found himI fev\er heat to sell ouit. I WAS JUST AS ANXIOUS TO BUY HIM OUT, SO IT DiDN'T TAKE A. GREAT WHILE TO GET AT IT." Beal's testimony, 124, 125, 126. Agaiii, on page 132, Beal testified respecting Chase's health: " His sight was poor, and his health failing, he was admonished, and he must close up his Xearthly matters; said all his relations and father hadl died at an early age, and lie could not possibly live. over fifty-six; and says I:' You look well and ought not to (lie yet.' Says lie:' I ain't afraid to die; I am prepared: I am a good Christian man; all my relatives are going * * * *.' This particular conversation was the first talk I had with him. THAT WAS THE REASON MADE ME KEEP MY EYE ON HIM. I made up my mind the old fellow would be pretty fast to sell out. As soon as I see his eye-sight was getting poor I would get around him and feel of him." Record, 133. In another place he says lie watched the business for he saw that his getting it was a mere question of time. And yet this same waiting, watching, and eager purchaser claimed in his testimony on page 127 testified as follows: "OQuestion. What importance, if any, did you attach to the statements and representations which were found in those papers of his?" "Answer. Everything: if it had not been for what he said from time to time in the paper, I should never have dreamed of investing that amount of money. * * * Should not have thought of touching it, and I don't think any other man in the county would touch it as it was." Record, 127. See also the testimony of Beal on pages 376, 377, and 378. Also bottom of page 384.

Page  45 45 Courts of equity will not enforce specifically a hard or oppressive agreement, though it relate to a subject matter on which they look with more favor than they do on contracts in restraint of occupation. In such cases without holding the contract void they frequently leave the party to his remedy at law. But in this case is not the covenant void even at law for want of consideration? - In Hitchcock vs. Coker, 6 Ad. & Ellis, 438, (same case 33d Eng. C. L., 241, 250,) in which for the first time it was laid down that it was not necessary that the consideration received should be proportionate to the value of what the party gives up or loses by the restraint, it was said by Chief Justice Tindal:'* If there is no consideration, or a consideration of no real value, the contract in restraint of trade, which in itself is never favored in law, must either be a fraud on the rights of the party restrained, or a mere voluntary contract, a nudum pacturm, and therefore void.'" In Hubbard vs. Miller, 27 AMich., 15, the agreement for restraint was part of the original contract of sale. The mere fact that the property was sold at cost with five per cent. for freight added, did not show that the property was worth the price at the time of sale as understood by the parties; and it could not, therefore, properly be said in that case, that the purchaser paid nothilg for the agreed restraint. lli this case, however, as clearly appears ftiom the testimony, there was in fact, nothing whatever paid for this covenant. The price had been agreed upon and settled, the deeds made, mortgages.assigned, and the bill of sale K

Page  46 46 Exhibit No. 2, in evidence (being Exhibit B, annexed to the answers,) was about half drawn, before anything was said about any covenant on the part of Chase restraining himself in any way whatever from his occupation. Record. VII. The mere sale of the good'will of the business withliout a covenant does not deprive a seller of the right to carry on the same business at the next door. Sharkle vs. Baker, 14 Vesey, 468. C(ruttwell vs. Sye, 17 Vesey, 334. 6 Ind., 203. Snowden vs. Noah, Hopkins'.h. Rep., 347, 351. Bell vs. Locke, 8 Paige, 74. VIII. But assuming the contract to be valid as against Chlase, there is no case made against the defendant company. There is no pretense of any contract or obligation in any form, on the part of the corporation, as such, to the complainant. It is not even charged in the bill that the corporation as such had any notice of the restraining covenant between Chase and Beal. The allegation is that the stockholders had knowledge that Beal had made the purchase and was carrying oil the business under the name of "Dr. Chase's Steam Printing House," and that Chase had entered into a contract with complainant in reference to the same, and had no right to carry on said business at ANN ARBOR, directly or indirectly. (See bottom of page 6 of Record). The proof shows that in fact, Mr. Krause, one of the corporators, had no know]edge or information of any restraining covenant on the part of Chase, and therefore the allegation of the bill above mentioned is not true. Besicles the corporation is a person in law, entirely distinct from all the individual corporators, and the contract of each or all of the corporators in their individual capacity would not bind the corporation, or render it liable to be drawn into litigation a.< a party. This is elementary law. In Van Allen vs. The Assessors, 3 Wallace, 573, 584, the Supreme ( ourt of the United States

Page  47 47 saidl: "The tax on the shares (of a banlk) is not a tax on the capital of the bank. The corporation is the owner of all the property of the bank, real and personal, and within the powers confered upon it by the charter, can deal with the corporate property as absolutely as a private individual can (deal with!his own. This is familiar law, and will be found in every work on the subject of corporations. A striking exemplification may be seen in the case of the Queen vs. Arnoud, 9 Ad. & Ellis, n. s. 806." And the Court further held that the interest of the shareholders in a bank was an ent' -ely distinct and independent interest from the interest or property of the corporation itself. The Queen vs. Arnoud, above referred to, was an application for a mandamus to compel the collector and comptroller of customs of Liverpool to register a ship belonging to the Pacific Steam Navigation Company, a British corporation. Registration had been refused upon the ground that various foreigners residing abroad were stockholders in the corporation, and had an! interest in the vessel, and were entitled to share in the profits of its business. By the law of England, foreigners were excluded from the privileges of British ship owners. By the statute, in order to obtain registration it was necessary to make oath "' that no foreigner, directly or indirectly, hath any share, or part, or interest," in the vessel. Another statute confined the registration. to such ships as " shall wholly belong and continue to wholly belong to her majesty's subjects," and prohibited any person who had taken the oath of allegiance to any foreign state, or who usually resided out of the Queen's dominions from being " the owner in whole or in part directly or ind..ectly " of a vessel requiring registration. The Court of Queen's Bench in granting a peremptory mandamus, Chief Justice Denrnan delivering the opinion) said: "' Now it appears to us, that the British corporation is. as such, the SOLE OWNER of the ship. luid a British subject within the meaning of the fifth section, as far as such a term can be applicable to a corporation, notwithstanding some foreigners may individually have shares in the company, and that such individual members of the corporation, are not entitled, in whole, or in part, directly or indirectly, to be OWNERS of the vessel. The individual members of the corporation, no dllobt, are interesed, in one

Page  48 sense, in the property of the corporation, as they may derive individual benefit from its increase, or loss from its destruction; but in no LEGAL SENSE are the individual members the owners. If all the individuals of the corporation were duly qualified British subjects, they could not register the vessel in their individual names AS OWNERS, but must register it as:belonging wholly to the corporation as owner. * *' It was contended that the effect might be to defeat- the object and policy of the navigation laws in this respect. The individual members of the British corporation might, either originally or by transfer, be all foreigners. Such does not.appear to be contemplated or provided for by the act in question. If it be casus omissius, and evil consequences arise., they may be remedied by tile interference of the legislature, and possibly, though I do not wish to be undelrstood as giving any opinion on this point, by repealing the letters patent as improvidently giving powers operating to defeat the law and public; policy; and in future patents, providing against the objection: but, as the case stands, it seems to us that the British corporation is to all intents, the legal owner of the vessel, and entitled to the registry, and that we cannot notice any disqualification of an individual member which might d.isable him, if owner. from registering the vessel in his own name." The Supreme Court of Illinois, in the recent case of Porter vs. The Rockford, Rock Island, and St. Louis Railroad Company, decided June, 1874, said: "The legal property of the stockholders is quite. distinct from that of the corporation, although the shares of stock have no value, save that which they derive from the corporate property and franchise; and a tax levied on the property of one is not, in a legal sense, levied on the property or the other." The Court in the same case, quote( s part of its opinion, from 2d Redfield on Railways, page 460, sec. 2, 3d ed., as follows: " The interest or right of a shareholder in a corporation is well defined by Shaw, C. J.:' the right is, strictly speaking, a right to participate in a certain proportion, in the immunities and bellefits of the corporation.' This is a right of property, as distinct froln tile capital stock of a company, as a debt is distinct fromn a debtor, or.the mortgage debt from the mortgaged premises." See Chicago Timnes, June 22, 1874, for full opinion of Supreme Court of Illinois.

Page  49 In- Secoind Congregational Society vs. Howard, 16 Picek., 2-10, 211; Chief Justice Shas said: " The well-knownl rnle' in regard: to a corporation-, as being a person ini law, having rights distinct from those of all its-members," settled the question in that: case. In Angell an.1 Amlnes; on Corporations; page 38, note 2; 4-th ed., it is said:' One of tile greatest distinctions in contem2l1ation of law, between; partnership and corporate companies, is that, in the first, the law looks to the individuals of. whomrn the partnership is composed, and knows the partnership no otherwise than as being such number of individuals; while in the second, it sees only the creature of the charter, the body corporate, and knows not the indclividuals.." See also, for distinction between partnerships and corporations, sections 41 and 591, of same book. It is. settled by a series of decisions in the United States Courts: that a corporation is a citizen of the State under whose laws it was: created, and that the residence of the corporators is -of no importance in dleterminiing the citizenship of the corporation, under the Judiciary Act, allowing suits between citizens- of different States. Ohio and Miss. Rail road Co. vs. Wheeler; 1 Black!, 286; 20 Howard, 232; 16 Howarld, 314; 2 Howard, 497. The Court below had less groundt for breaking up the business' of this corporation by injunctions than the deputy sheriff in:Nich', ols vs. Thomas, 4 Mass., 232, 233, hiad for arresting one of the "proprietors:" (or corporatorsl) of. The President, Directors, and Company of the Union: Tulrnpike Corporation," under an- ex-: ecution commanding him to levy on1 the goods' etc., " of the said President, Directors,- and Compamny of the Union: Turnpike Corporation, and for- want thereof to take the bodies of saidPresident, Directors; and Company." This corporation; did not obtain its right to, print and publish! from either Chase or Beal, and is in no way affected by any personal rights or liabilities of those persons as between; themselves. It is rather difficult to see how! any NOTICE to the corporation, if one had been alleged and proved, could affect its rights. But, as before stated, there is no such allegation or -proof as to the corporation. There is no pl oof whatever in. the case:impeaching the genuineness of the corporation, or: throwing; any doubt on the: validity of the stock of Messrs. WTatson, Deans, Krause, and L

Page  50 50 King therein,-or on the fact of the absolute sale by Chase to the -other- stockholders- of his entire stock.. —f, as the court below seemed to think, there was no distinction between a corporation and the corporators, upon what rule of justice could the stock of Henry Krause be destroyed by injunction, since his investment was made without being under any obligation to Beal, and without any notice in fact on his part of any restraining covenant on the part of Chase? IX. There is nothing in the contract between Chase and Beal whereby Chase is restrained from the writing of any book. The sale of "Dr. Chase's Recipes, (being his first book,) and the other things- mentioned in the contract did not affect or impair the rights of Chase'as an author, exc6pt to transfer hisinterests under the copyrights sold. (See the discussion of this subject on pages 40 and 41, in the brief of Lawrence & Sawyer.) The defendant company having the general right to print and publish had as full a right to print and publish a book written by Chase as any other. Whether the new book is a better or more popular book than the one sold to Beal, or whether its sale will tend to supercede the sale of the former book is entirely immaterial, since its publication and sale is a mere exercise of a right of the company. -In the absence of a valid restraining covenant, Chase himself was authorized, not only to write, but also to publish as many books as he pleased on the same subject, and of the same general character as the one sold to Beal, so long as he did not induce the public to believe the book to be the same IDENTICAL book as the former one, and so long tas he was guilty of no infringement of copyright. Hogg vs. Kirby, 8 Vesey, 215. Snowden vs. Noah. Hopkins, Ch. 347. Bell vs. Locke, 8 Paige, 75. Crutwell vs. Lye, 17 Vesey, 341. See also opinion of Judge Higby in the former suit between these parties, Record, 504 to 507. The " Second Receipt Book," published by the defendant corpo

Page  51 ration is carefully.distinguished by its. title page fiom. "Dr. Chase's Recipe Book" which- he. sold to Beal, and.its volume, contents, and appearance are,: so different that there is no possibility of one. book being mistaken for the other. N-o. infringement.of copyright is )retended,- and if there were, no remedy therefor could be sought in a State court. Palmer -vs DeWitt, 47 N. Y., 536. Wheaton vs Peters,. 8Peters, 668., Dudley vs. Mayhew, 3 Comstock, 14. X. The decree is: broader than. the contract. After restraining Chase from being directly or indirectly engaged in the business of printing or publishing in the State of Michigan, so long as Beal remains in that business at Ann Arbor, it restrains him from printing or publishing, or being in any manner, directly or indirectly, engaged ORl INTERESTED inl.:intingr qr publishing in this State, " Dr. Chase's Family Physician, Farrier, Bee-Keeper and Second Receipt Book," soqlong as Beal shall continue his printing business at Ann Arbor, and sha;lI print and publish ".Dr. Chase's Recipes, or Information for Everybodys." As it is not probable that mere tautology was intendled by the insertion of the words " OR INTERESTED," the intention must have been to impose a restraint be3 ond the "' engaging, directly or indirectly, in the business of printing and publishing." The purpose of complainant's counsel in so drafting the decree undoubtedly was to deprive Chase of his author's royalty, and to embarrass the company in the performance of its contract to pay Chase for his interest in the copyright-which results are not within the words of Chase's contract. And the -injunction decree restraining the company from carrying on the printing or publishing business in connection with Chase, or wherein Chase shall be directly or indirectly engaged OR INTERESTED, and from printing or publishing in connection as partners or otherwise with Chase, OR FOR HIS BENEFIT in whole or in part, &c.,' Dr. Chase's Family Physician," &c., is justly subject to the same criticism. The decree goes the vindictive length of depriving Chase of a

Page  52 522 right to INCOME from a; book which he wvas at liberty to write, though he- shall not be engag-edl in any way in the business of printing or publishing it. It is not content with excluding him from his:occupation of printer and publisher, but it refuses him the rightssof authorship which the covenant left intact. -I also call attention to the fact cleaily established by the:proofs, that soon after Beal's purchase,- he changed the name of the printing establishment from'" Dr. Chase's Steam Printing House" to " Courier Steam Printing House, R. A. Beal. Proprietor," and contiuued such change of name in the business of the establishment and in its imprint, until since the filing of the bill in this case. XI. The defendants had a right to set up in their answers, facts which occurred prior to their being put in. Lyon Ivs. Brooks, 2 Edwards Ch. 110. Upon any view of the case the decree should be reversed as to both defendants, and the bill dismissed. The part of the bill wherein the complainant seeks to secure to himself all Chase's letters, is, if possible. more indefensible than the decree appealed from; but the discussion of that subject, as well as the question of damages, arising under the second decree, will be reserved for a separate brief, unless the court shall think proper to order that both appeals shall be heard together at the present time. HIRAM J. BEAKES, Of Counsel for Defendants.


Page  2 JUDGE CHRISTIANCY'S OPINION. The bill in this case was filed July 14th, 1873, his book ihad been changed. lie no longer in the Washtenaw Circuit, for the purpose of traveled himself for that purpose; but tihe enjoining the defendants from carrying on, or books werefurnished topersons in various parts being directly or indirectly engayed in thle of the country and in the various S:ttes, who business of printing or publishing in tie State chose to undertake the saleas traveling agents, of rMichian, so long as comrlainant, should be or rather traveling booksellers, wio paid the engaged in that business a Ainn Arbor, and mioney for the boolks at awholesale price,before from taking and receiving, from the postoffice thle books weire taken or sent heoni the oftice, at. Ann Arhbor tn letteirs addressed to saiod antd iiostlv sent out to tiose perisns iiul)on orChase, whicit should not tiave upon them a (lets sent by letter by them to Dr. Chaise, acdesignation of the numiber of his priv'ate letter coinpanied with the inone'y, or1 a draft, oir postbox, or frorm interfering with their delivery to office order. Letteis of this kind had become complainant: and from publishing or tmaking very numerous aind the sales unprecedentedsale, either dtirectly or induectly, of a book ly large, over 325,)000 in all having been sold up written by said Chase, known as "The New to the close oh the year 188. aid about 75.t00) Book —Dr. Chase's Family Physician. larrier, when the sale was made to Beal: tldd as stated Bee-kieepei, and Second Receipt Book. As ain over his own signature fromn time to time in abstract of the bill and answers will accoen- lhis paler, to which hlie ref:rredc Beal when iepany the report, it is unnecessary here to no- gotiating for the purchase, the total receipts of tice their several features or allegations,further the office and business, including sales of the than to say. that the bill is appropriate to the book, were for the year 1866. about of 855,000, state of facts shownI by the evidence, so far as of which 547.'251.84 was for the book alone; for such facts warrant the relief asked. the year 1867, total receipts weree $66,031.0;8, of Nor shall we enter into a discussion or analy- which.u57,78l.36 was for the book; and for tlhe sis of the large volume of evidence in the re- year 1iS6, the sales of the boo0k aiounted to cord and the particular reasons which shave led about.11,000 less; but the other business of the us where the evidence is conflicting, to the estalblishment had so increased that the protits conclusions at which we have arrived; but we for the year sw'ere about the same. Letters in shall proceed to state the minain facts and es- reference to the book, mniny of which coutaiinsential features upon which, in our view, the ed money, drafts, or postoffice orders. often decision of the case niust depend, as we find amounted to from 100 to 150 per week, and them. established by thile evidence. brought in fromi $:00 to $100 up to oveir 1,200 per ~-Some fourteen years prior to the sale by week. much the larger portion of whiclh was Chase to Beatl, presently to be mnentioned, clear profit. The sale of the book was the g reat Chase had published a book, uiideir the title of source of profit, antd this book, together with "Dr. Chase's Recipes; or, Infoiriation for Ev- his newspaper, and the prompt and excellent erybody," which proved to be very populari', inmanner in which the job-work of the office and the diemand for which was ve'y great..was doiie, had made Dr. Chase well known to, For the first seven years after its first publi- and popular with the public, and had given cation, the sale of this book had beenii made him and Ihis establishnent a high reputation principally by Dr. Chase himself traveling w-hich lattracted a lareamnount o'f business; so ab)out I te country for that purpose. But the thatas he representea in his paper to which sales becomiing so large, andit the profits so con- Beal during the negotiation was referred fot' siderable, and the public demand still increas- the facts, he was receiving orders from every ing, hlie had. several years prior to the sale to section of the State, from Wisconsin and from Beal. established in Ann Arbor a printing. Indiana, and all over the Western States; still house and bindery, in whiich the printing and as appears by the evidence, much the largert binding of this book was carried on, anid in portion of the business was furnishied froindifconnection with which lie published a news- Ierent parts of this State: and fronm cousiderapaper called "TnH E PENI.N-ULAR COU LtIER AND ble portions ofwhich, and especially thie whole FAMILY VISITANT,"and carried'on the business Upper Peninsula no orders had yet been reof job-printing and binding. The establishment ceived. Thie book was the main support, howbeing known as'"Dr. Chase's Steam Printing- ever, of thle office, and as lie more than once inHouse," and as "The Courier Steam Printing- timated in his paper, but for that he could not House." This business and the establishment have made the other branches of business veiry in which it was carried on —at first compara- profitable at the prices for which his work was tively small, had rapidly increased and groivn d(lone. And for the last year the sale of the larger in course of time, and by adding froIs book had materially diminished, the country, time to time, more presses, type, tools, and ap- (with the.exception of the Southern States) paratus, and enlarging the building in which having been pretty well canvassed; and the it was carried on. tile whole had become one of book had recently been offered to the trade the best and most complete establishments in (the regular booksellers) in many of the States, the Northwest, for the business of printintg and the sale by tiraveling agents beiiing still continbook-binding, and beyond the printing and ned as before. binding of Dr. Chase's b oks, enjoyed a large Such substantially was the condition of the and increasing patr ge, soliciting work business when, oil the 30th of August. 1869, from all parts of th tate as well as from Chase sold out to Beal thile printing and bindabroad, and actually obtaining work firom va- ing establishment and the busiiess connected rious parts, and a large portion of thle State, with it, the book (and two otheir boo{is men(though as yet none from the Upper Peninsu- tioned in the contract of sale), and the newslaX and a considerable amount from other paper and its subscription list,as well as the lot States. In the meantime the ni,)de of setlling and building where the business was carried

Page  3 TJUDGE CHRISTIANCY'S OPINIO1. 3 on, the entire apparatus for printing and bind- then told Gott to insert, that while Beal should ing, and the. good will of the business. Some relmain in the printing and publishing busitwo years previous to this, however, some ne- ness in Ann Arbor, he. Chase, should not engotiations had been commenced between thein gage in it in Ann Arbor. But Beal not being in reterence to a sale, an offer ilad been made satisfied with this, it was finally agreed that by Chase to Beal, to sell for about i37,000).which this restraining clause should be tmade co-exBeal, after some days reflection, concluded not tensive wit.h the State, as it now stanlds in the to accept. But he still continued to watch the colntract. We mention this only because it is progress of the business with the view of mak- n1ow insisted by the defendants' counsel that ing the purchase at some future time, believing there was no consideration for this rest raining it, as he expressed it, the best thing in Ann:i clause, aside from what hadt already been verlArbor. And ChLase. though he had greatly en- bally agree(l upon ior the purchase, and that, larged his offtice and increased his husiness,had therefore, there was no adequate consideration.. in the meantime become anxious to sell. for this restraint upon Chase. But, as there is Some days prior to the sale, the parties met nothing in the evidence tendinl to show at Ann Arbor, and entered upon negotiations. that Beal would have consurmmated the purChase made representations of the nature and chase for tie price given withoult this stipextent of the property and business, the sue- tilation, and it satisfactorily appears that he cess of the book, the profits of the book and would not, we see no ground for any question business, which he represented to be large,and of the adequacy of the consideration, if this the business in a flourishing condition,extend- provision is in other respects valid. Upon this ing generally over the State,and into adjoining question of consideration the case falls directly States, as already noticed, and constantly in- within the principle announced by this Court creasing; and explaining the mode in which it in the Hubbard v. Afiller,,7 Mlich. 15, and this was carried on and the book sold; which rep- 1 point need not be further noticed. resentations, Beal alleges in his bill, and testi- The contract or instrumnent in whinch this reties, were generally and in the main true. He i straining )provision occurs, is in these words: enlarged upon the popularity the book had at- "'This agreelenl, made the Oth (lday of August tained, its great usefulness, and the reputation in the Syear of our Lord one thtiousand eight he had acquired and his establishment; and hundred and sixty-nine, between Alvan W. that this would be of great advantage to Beal Chase of the city of Ann Arbor, in the county should he- make the purchase, and said that it of Washtenaw, in the State of Michigan, and would be likely to command the market for [ Rice A. Beal of the same place, witnesseth,that many years; and that no other book would be the said party of the first part, grants, bargains. likely to come into competition with or super- sells and conveys, unto the said party of the sede it. As a reason for wishing to sell out he second part, (in consideration of the sum of stated that he was getting advanced in years: forty thousand dollars to him in hand paid) his sight was getting poor, and his health fail- the machinery, boiler, engine, presses, tools, ing; that he had now enough to live on, and furniture, and stock of whatever name or nawlshed to retire from so arduous and extensive ture, in the building occupied by said Chase, a business; and if he continued to do any busi- as his steam printing office, and this day sold by ness, should wish to get into a business more him to the said party of the second part,together easily managed, and which would not require with all accounts for unfinished work on which so much constant care and attention, and payment has not already been made; together would be more manageable for a family like with the subscription list of the PENIr-SULAR} his; that if Beal should purchase him out, he CoURIER AND FAMiILY VISITANT, and also the would aid him in getting acquainted with and copyright of a book called'Dr. Chase's Recipes, starting the business, and would, as Beal testi- or Information for Everybody,' and also one ties, devote six months, but as Chase testifies, other book called'The Judd Family,' also a three months, to this end; spoke of the great book called'Reminiscences of a Voyage Around amount of the letters and orders for the book, the Worldl'-a copyright of which is to be hereand for work to be done,which were continual- after obtained, together with the good will of ly being received, enclosing money, drafts, or the business of printfnig and publishing, and also postoffice orders, which would go into Beal's the right to use the name of Dr. Chase in con.hands, and would continue to come for the nection with said books, all the stereotypes and book for years to come. electro-plate for said books now completed, Finally on Saturday the 2Sth of August, 1869, and also the book-bindery tools and stocks, the price and terms of payment were verbally and all contracts for printing and publishing, agreed upon; the price was nominally sixty- together with all moneys to be hereafter refive thousand dollars, of which thirty-five ceived upon jobs or books unfinished. And the thousand was to be paid down in cash, and se- said party of the first part also agrees that wshile curities received as cash, and for the balance said Beal remains in said business ef printing and thirty thousand dollars, Chase was to receive publishing in Ann Asbor, he will not either directly certain lands in Minnesota and certain real or itndirectly engage in the business of printing. and estate at Sank Rapids, MIinnesota, with a hotel publishing in the State of Michigan. upon it, and certain furniture and personal And the said Beat on his part, if' he cho:;es, property; all of which Chase took at his own may carry on said business. and he shall have risk, as to value, having made such inquiries the exclusive right, under the name of'Dr. concerning it as he chose to make. And on Chase's Steam Printing House,' and may add Monday,the 30th of August,the parties went to R. A. Beal, proprietor, and he also agrees to the office of Mr. Gott, in Ann Arbor, to have fulfill all contracts heretofore entered into by the papers drawn and the necessary transters, said party of the first part for work, printing made for carrying out the arrangement. The and advertising or publishing, and is to rereal estate of Chase in Ann Arbor was convey- ceive all moneys unpaid on said contracts. He ed to Beal by a deed of Chase and wife, for the is also to furnish the COURIER AND VISITANT consideration (specified) of twenty-five thous- to all subscribers for the balance of their suband dollars; the proper conveyance made by scription year. and receive all unpaid subscripBeal to Chase of the Minnesota property. The tions. All property belonging to workmen, contract or instrument transferring the print- and all books or papers left for binding are exingr, pblishing and binding, the newspaper, ceptedout of this sale; but it is intended to the book, etc., and the business connected with include all furniture, tables, desks, and everyit, seems to have been the last instrument thing used to carry on said business of printdrawn, the details of which do not appear to ing, publishing and book-binding. The party have been in all respects previously specified of the second part is also to have the privilege and agreed upon. When this was partly drawn for one year of using the cistern and privy, on Beal said that"of course Chase was not to go lot west of Steam Printing House for engine into business again;" Chase replied that, and hands of the building. Beal is to pay taxes "nothing has been said on that point"-to assessed to Dr. Chase on the property this day which Beal said, "of course, you are not; and conveyed to said Beal, real and personal, for it must be embodied in this paper." Chase the year 1869.

Page  4 4 JUDGE CHRISTIANCY'S OPINION. The party of the first part also sells to the ence to it, but resulted in nothing. In one of party of the second part. his gray horse and es- these interviews Chase intimated for the first tablishment purchased by him of Rev. H. S. time that his contract not to go into the printWhite, including buggy, cutter and harness, ing and publishing business was not worth the saddle, bridle, buffalo robe, bells, etc. paper it was written on, and that he had a Said Beal is to have the privileqe of receiving the righL to go into the business in Ann Arbor, lettersconnected with said business, and opening which, however, he said he should not do, as the same. hle had given niis word. At length, however, Witness our hands and seals, etc. in another interview, he told Beal very (lecidSigned by CHASE AND BEAL. edly that unless he would sell out he should go The papers were all executed and delivered into business again; that though it would cost on the 3Uth of August, and on that day or the some money to start an office, there were men next, the parties went together to the post- ready to help him who did not like him (Beal) better office, and Chase then publicly, in the presence of than he did. And Beal havinn heard of the the clerks. told Col. Grant, the postmaster, that he efforts of Chase to buy another printing estabhad sold out his business to Beal and everything hlishment, and knowing or believing that there connected with it. and that Beal was thereafter to was not room for two such establishments at have all his correspondence and money orders, etc., Ann Arbor without such competition as would directed the postmaster to deliver to him all letters render them unprofitable, became alarmed and anderus to sellm Bunt Chase as no longear inclied directed to him, Chase, including registered letters, anxious to sell. Btt Chase was no onger inclined for which Beal. he said, was authorized to receipt to purchase, but said t at if he, Beatl, had sold in his name, and that he was authorized to sign his when he wanted him to. it would have been all name in all matters connected with the office, and the right, but now he was in a better shape, and would business, that Beal was to have the postoffice not buy at all. drawer previously used by Chase in connec- Chase thereupon soon after, in the latter part tion witti his Office business; and he directed of July, 18-72, rented a building, rot in presses the postmaster to put all letters that came di- and printing material, began establishing the rected to him, or to the printing and publish- printing and publishing business, and had ing house, into that box for Beal, unless such cormuenced setting type for the new book, letters bore on the face of them a direction to Iwhen the association or corporation klolWv as his own private box, (which he said he would The Ann Arbor Printing and Publishing take,) or the number of his residence, saying at Company was formed, the articles of associathe same time. that he was no longer Dr Chase. tion for which are dated August 26, 18St2, filed This direction to the postmaster was in accord- with the Secretary of State August 28. and with ance wit~h the parol unlderstanding had be- | the county clerk of Washtenaw on the 30th of tween the parties during the negotiations, in August, 1872. This corporation was located at which it was understood that Beal was to re- Anil Arbor. Its objects are declared to be, to ceive and open all such correspondence, and do general printing and publishing business, whenever he found a letter which pertained to to print, puolish, bind and manulacture books, Dr. Chase personally and not to the business, periodicals, newspapers, tracts, documents, and lie was to return it to Chase or put it in his other publications. Its capital was to be $50,private boax. 000. divided into 500 shares. The stockholders, And Chase some time after this had a printed with the shares taken by each, were declared card and letter-head put on his private letters to be as follows: to his correspondents, stating that all letters itn- i Avan IV. (Chase,.. 250 shares. tended for himself ortJamily should also have upon Jatmes C. Watson,.. 2) them Postoffice Box 351, otherwise they would go to Henry S. Dean, 1 his former printing nouse and be opened by stran- edgwick Dean, Zina P. King. 10 " For about three years this arrangement rela- Henry Krause, tive to the correspondence seems to have been All of whom resided at Ann Arbor, and each scrupulously adhered to, and the letters re- i was declared to be a director of the Comlpany. ceived, the larger portion of which were in A President, Vice-President, Secretary and reference to the sale of the book, which was Treasurer were provided for. One half ttle principally sold in this way, amounted tofromn capital stock ($25,000) was paid in, Chase putthree or four per day up to thirty per day, a ting in the stock, and material of the printing very large portion containing orders for the house he had just commenced, as a part of paybook, and money drafts or postoffice orders to nent; and this was merged in the new Coinpay for them. And among the letters thus re- pany. Some cf the stock/holders had long been ceived. addressed to Chase, not orte in Jour or aware of the contract between Chase and Beuel, and five hundred, if indeed one in a thousand, had ref- of' the nature of the restrainirng clause in it, and all erence to the private business of Chase, or any bus- the others, with the possible (though to our mind iness except that sold to Beal. And taough not probable) exception of Krause, had notice oj' it the sale of the book had gradually somewhat before the corporation was.fully completed or went declined, as the demand for it was being sup- zinto busines'., but concluded to take the risk of its plied, it was still very large, and the business invalidity. of the printing and binding establishment was Dr. Chase, who owned one-half the stock, was large, prosperous and profitable. made president and superintendent of the ComBut in the meantime, Doctor Chase had com- pany, and so remained when the bill in this menced writing, and was preparing for publi- case was filed. He was the only stockholder cation. a niew book upon a somewhat similar who had ever betore been engaged in or carried plan, though containing none of the matter of 6n the printing or'publishing business, though the first book, and entitled (upon the title page) one other stockholder, Watson, had, when a ~' Dr. Chase's Family Physician, Farrier, Bee- boy learned to set type, and he had been the Keeper, and Second Receipt Book," and being author of some books, and contemplated the desirous of publishing the same himself, and writing and publishing of others.'hie Colaat Ann Arbor, where he resided. had consulted pany also established and published a weekly counsel as to the validity of the restraining newspaper, the' Ann Arbor Register," aind clause in his contract with Beal, and had come entered upon the general printing and pubto the conclusion that it was not legally binding lishing business. Their establishment in a upon him, an7d therefore, as he testifies, that he was short time, by the addition of presses, type, under no obligation to abide by it. He still, how- and apparatus for the various branches of the ever, kept the entire consideration which lie work, rivaling that of Beal, though not equal had received, and did not return or offer to re- in extent or capacity. turn it, or any part of it. Dr. Chase being still engaged in preparing But he met Beal and proposed to purchase his new book, wnich had been previously adback the property, offering to pay in other vertised to be completed by the 1st of Decemnproperty to the amount of some $15,000 to $20,0, 0. ber, 1872, but which was not yet completed, on Beal, however, asked $75,000, and offered to sell the 3d day of April, 1873, entered into a formal for that. Several interviews were had in refer- written contract with the Company, by which

Page  5 JUDGE CHIRISTIANCY'S OPINION.5 he purports fo give to the Company the ex- old edition of a book after a new one is got oult, elusive right to publish this new book. during then will tot this rule hold good with an entire the term of its copyright; the Company to nTete book by th: same author, which not only co,publish thie work in good style as soon as pos- ers the ground of the old, but is fully four times sible after receiving the manuscript, and at all as extensive, and contains entirely new inmattimes to keep a supply of it for sale, and use all ter. as compared with the first. Even those reasonable efforts to advance its sale, and pay- who have the old ought to lave the new." The ing to him ten cents on each dollor of the retail circulars were headed "Dr. Chase's New Reprice ot all the books sold; and the new boo'k C'eipt Book." was issue(l April 2:ld, 1873. It is proper to say here that from the evi- CIRCULAR TO AGENTS. deuce and all tile circumstances of the case, The letters in which these circulars were sent Chase hinmself was the first to stugest and in- iout to those who had sent for the first or old stigate time formation of this comrpany, and book, and those engaged in thle sale of it were was anxious for -ned active in promnoting its headed in printformation, though Watson was thile most active member in actually effecting it. Ve are also "A. W. Chase, President and Superintendlent. entirely satisfied tha' the ptblication a(nd sale of J. C. Watson, Vice-President. Dr. Chase's New Book, the Second Receipt Book, Zina P. King, Secretary. which from the unprecedented sales of and great Henry S. Dean, Treasurer. profrts of his first book, it wat believed would prove Organized August, 1872. equally profitable, constituted the main, znducemennt The Ann Arbor Printin and Publishin The Ann Arbor Printinig and Publishing: for theformahtion of the Printing and Publishing T?.` Compony, and that the stockholders believed Coinpany, publishers of Dr. Chase's Family C~ompqcly, a~nd that the stocktlolders believed hsisr'-tle~ H-kep adco tthe sale of this bock woul1 form the -'reatest Physician, Farrier, Bee-Keeper andSecond.Receipt Book, issued April 23. Retail price, $2.00." and most reliable source of profit to this coin- Aidas another specimer,iild it isa specimen pany. as the first book had to Dr. Chase's Prtnt- of tile kind of eforts made to make tile new ing Rouse ksince sold to Bealb. amd that, withl- book supplant the old, and to interfere with out this new book and the prospects of profit the proper business of Beal connected with tile to he (terived from it. this printing comp!any book sold to himni, the following is a letter unwould not have been formied. But to return to the correspondence,the com- der the above letterhead: pany having been formed and about commenc "ANN o, June 3, 1. LI ~~~~~~~~~~~~"AN.N ARt~OR, June 3d, 1873". ing, if it had not already commenced the busi-. J. D B,ness of printing and pnblishing under his superia- Sir: You fr of te st is t. I sold tenenc, Caseon he 9thdayof eptmbe. 172. Sir: Your favor of the 1st is at hatnd. I sold ndence, Chadse ohi the 191 diay reo tteber, 187pt, out the old book nearly four years ago, and countermundcl~d hN. prv,totts directton to t/re post-I ina~ter, by the, l low letterhave in the last three years got out a second aster, b the fllowing telle entirely new book, and as no book-store men ANN ARBOR, Mich., want to buy all old book after a new one is September 19. 18572. out, you may feel the same way, at least the POSTMASTER, ANN ARBOR, MICII. — people here do. The enclosed circular gives Sir: You will hereafter place all letters ad- prices and a descriptive circular. and "Regisdressed to me in my box, unless there is stone- ter," our newspaper, will give you an idea of I hing in the address of the letter to indicate thile new bookl and its sale. \VWe will wait your that it is intended for the publisher of Dr. further orders, remarking, however. that we Chase's Recipes or the proprietor of Dr. Chase's confine our men to one coun lty only, and one Steam Printing House. county for each assistant. We sell in no other [Signed] A. W. CHASE. way. Respectfully, A. W. CHASE, The first notice Beal had of this was that Superintendent. from that time he began to receive letters in Other similar letters were sent to pa.rties who reference to the book and business of the office had enclosed a remittance for the old book, (addressed as they all along had been to Dr wlich was also sent. Chase) which had been opened by Chase, and This correspondence having relation to the on which he had writteni Beal's name and put book and business sold to Beal, though continthem iin the These letters mainly related uedl in thle name of Dr. Chase, as it was underto the first receipt book, as fornierly, asking for stood and agreed it might be, it cannot be dethe book, seeking agencies, and inainy of nied, was just as much the property aiid corthem containing renmittances of money, drafts, respondence of Beal's as if it had been carried or postoflice orders. But from about this time onil by Beal in his own name; and Dr. Chlase the nitmber of letters, the aimount of remittances had no more right to control it, or to avail himconming to Beal's hands and the sale of the book be- self of any benefit to arise fronm or inlormation yan pet ceptibly to decline beyond anyprevzious tate, contained in it. And as by an express provisand more and more rapidly as the time passed on, ion of thile written contract. the validity of a principal reason for which will appear as we wvhich is not disputed, Beal, and not Chase,was proceed to hare beet, the use made by Chase of the to have the right niot only of "-receiving" but c rrespo'cdece belonging to Beal. the circul(ors is- of "opening" the corresponoence. we cannot sued and efortrus itade by Chase for the sale Jof the ctoubt that if the position of the parties and new or''second Receipt Book." In Aorilor May, the case hail been reversed, and Beal had 1873, Chase ceased t, hand over to Beal even Ihe let- taken, and openied, anid made use of, in tlhe let-s cont tiining orders cand rewittatce s for the old same way, correspondence belonging to Chase book. but retained them, sendinig the old book, and pertaining to hi.s business,Dr. Chase w-ould however,when the orider was express, but send- readily have seen and felt thle untikiriness and ing also to thesepersolsn and to those agtmts who injustice of such a course of ciionduct. But it trere egaged in, selling the old bookfor Beal, ct'rcu- will suffice to say here that. tue natural and dilars describit.g and extolling the`New Heceipt rect, if rot also thie necessary effect of this Bo'k.t" invitiing them to undertake its sale as a course of coniduct in reference to thie con-esmore saleable and a better and more complete pondence, as well as in getting up and estabbook, and likely to supersede thie first receipt lisiing, anid aiding to carry onil a imv-al cstabbook. As a specimen, I hear quote what Dr. iisimneit. for printillng, publishing,binding, etc., Chase says in one of the printed circulars sent was to lesseni the sale of the receipt book out by him, (purporting to be superintendent which had been sold to Beal, and to dimnimislm of the printing conmpany) to thie agents or per- his business in all its departiments as well as its sons klnown by him to be engaged in the sale of profits. And there is nio room lifr doubt that the ol t book/for Beal (and opening as he did all the Cimase's coniduct in referenice to the correspondletterts comiiig in his r,,,rnme pertailing to Beat's busi- ence and the use lie mnacle of it, were purposely ness correspondlence tnld age.cies, he had everyfa- intenided to have this effect, as respected the cilityjor ascertainitng the list of' theni)le says (alter success and sale of the first bool.'IThe evidence enumerating time various contents o0 the new tends to snow the extent of the loss and iinjury book) "antd as no bookstore ro an wilt by even an, thius caused.

Page  6 6 i JUDGE CHRISTTIANCY'S OPINION. Ando though th amount i.' not sts?.A(-p dissolve the injunction were made by defendtfiblc of accurate acculttion d ants upon affidavits and heard by the Judge l~ of qacc:!rette cqcution, cd -n prior to the filing of an answer by either of only be matter of' probable estimnatc, the them, both o0 which were denied. question beinyg affected by so many con- Thile Printing Company filed its answer to the s'~iderat~~ionst and npresent bill August 5th, and defendant Chase si4derations~ and the actuatl fallinff qf in Pugnst 11th, 1873. the recei -),.~~~~~~~~~i,-ugust Iltl-1i 1873. fthe reeipt.s beinzg in some small degiYCC, In the meantime, Chase had, on the first day attfributabhle to other- causes. Yet, cplon 1 of August, (18 days after the filing of the bill) a, o +,refid co)-isideration of' the tcss executedl an instrument of that date, purporta ~(t~'a~re~tr o~ ioi;o;,u ing- in consideration of.12,51)0 to sell, assign tnd malkingc dute atllowaonce fJor oih(i' and c()nvey to the other members or stockhold((fuses on1 if o f1 r1 eceipts, I th0io ers of thile Ann Arbor Printing and Pnulishing the loss or da)n(geJairl// trcaceablel to the Company (in certain specified proportions to each) all his stock and all his rights as a stockunsearj'atabt'(tl~~e izntejereniee with the cor- holder, and his subscriptions for stock in said respondence belongingq to BIeal, the still company, he to be kept harmniless from any subunwaantable se made f the sequent assessments on the stock which they mnore?rmvaorrantable use made of the it- agreed to do; and on the same day resigned fotrmation thereby obtained, and to the the office of President and Superintendent of rivactry created cand the amount of butsi- the Company, which the remaining Boa.rd of and profits diertedfrom Bea, y Directors accepted, he still, however, retaining ness arnd piofits r diverted from Beal, by his interest in the contract made with tile the establishment of the printi/ng and Company for publishing the new book. publishing, compancty cannlot s~afely be This transfer (whice Chase swears was made below, (it' it'is nHot in farct Ibt1 for tne purpose of getting the book published ae swn?, ~tct Cfb~t~C) by the Company) is set up in thile answers asa the surm.Ioutnd by the Court below aCld ground for denying thle relief prayed by the fixed by the dec~rec, andl Isee nio 1reason, bill; and two successive motions were mnade — forll~ distf~ti the counount thi fixr, i the first by the Company for a dissolution of for disturbing thus aounte thse injunction after its answer was filed anld dl;ci&tage:.s bc allowahle at all. Ibefore that of Chase was filed, which was deTo proceed with the history of the case; niled. The other, by both defendants. after the Chase had on the 19th of September, 1S72, coun- filing of Chase's answer, for ihe modification termanded his directions to the postmaster, of the injunction, which was so far granted on and taken possession of the correspondence as the 4th of September as to permit Chase already stated. to take from the postoffice all letters Beal, on the l?7th day of October, 1872, filed his naddressed to him., unless there was bill in the Circuit Court for the County of something in the address of thile letter to indiWVashtenaw, in Chancery, against Chase and cate that it was intended for thile publisher of the Ann Arbor Printing and Publishing Corn- Dr. Chase's Recipes, or the proprietor of Dr. pany, the principal object and only express Cthase's Steam Printing House. But the inprayer (for relief) of which, was to restrain the junction was continued against all the defenddefendants from printing aind publishing the ants in all other respects, as prayed for by the Second or New Receipt BooK, on the ground bill. This the defendants seem to have found that the title of the book, was an infringement somewhat embarrassing, and all tile remainupon the proprietory right of complainant to ing stockholders of the Ann Arbor Printing the copyright of the first book sold to him, aid and Publishing Company, with one Franklin calculated and intended to lead the public to M. Chase, a nephew of Dr. Chase. organized a believe, that the book about to be published, stock company at Toledo, Ohio, under the style was but a, new, enlarged, and more complete of "The Chase Publishing Company of Toledo, edition of said first book. The bill, however, Ohio," with a capital of $10.000. Franklin M. sets forth briefly, and with much less particu- Chase, who was the book-keeper of the Ann larity than in the present bill, much of the Arbor Company, being the secretary of this. same matter found in the latter. The sale by This Company was obviously and essentially Chase to Beal of the first book and thie printing the same, and under the same control, as tlhe ihouse and busine-s, the undertaking of Chase Ann Arbor Company, established for the sole not to go into tile printing and publishing and only purpose of publishing Dr. Chase's business in the State, the agreement in reler- new book. which the Ann Arbor Company had ence to thile correspondence, that Chase hadl'"re- been restrained from publishing in this State, cently entered upon a plan to disregard and and doing no othler business. And onil the 30th violate his said agreement in relation to said day of September. 1873, thile "Ann Arbor Printsale and purchase," complainant's continu- uing and Publislhing Company," by anll instruance in thile business of printing and publish- Inent of that date, purports to convey to the ing, the organization of the printing company,'Chase Publishing Company" all the right of which is charged to be a sham got up by Chase the former Company i and to the agreemtnt to evade the terms of his agreement, &c. The between it and Chase for the printing of the adtvertisements issued in relation toi the fortil- new or Second Receipt Book; anct upon this comning Second Rteceipt Book, and thie injury instrumient Chlase. on the 18th of Novemrnber likely to result to complainant from this course following, endoirsed his assent to this transfer, of conduct; and praying besides tihe specific and to tue substitution of the obligations of relief asked "such other and further relief as the one Coinmpany for those of the other, he may be agreeable to equity and good con- holding himself under the like obligations to science." the new as he had been to the old Company; In pursuance of a previous order to that ef- and the publication of the book has since been feet, the Ihearinig of an application for a prelim- carried on at Toledo. inary injunction on this bill, was had on tile' The case having been heard upon the plead22d of October, and the motion was finally, on ings and upon the proofs taken in open court, the 25th of October, denied by the Cirenit' and submitted, thle Court, on thle first day of Judge. June. 1874, rendered a decree disposing of a On the 4th of December, 1S872, the defendant part of tihe cause, but reserving certain quesChase and the Printing Company, filed their lions in the cause for further consideration. separate answers, going over much of the same This decree, so far as rendered on thile tirst day ground as their answers to the present bill. of June, was substantially that, 1st. Chase be'Ihe case remained in this condition until the absolutely enjoined and restrained from catr'14th day of July, 1873,when it was discontinued rying on, or being directly or indirectly enby the complainant and the preseint bill was gaged in the business of printing or publishing thereupon filed on the samne day, and a prelim- in the State of Michigan, so long as Beal slhall inary injunction hlaving been granted as remain in or continue to carry on the busilness prayed by thle bill. two successive motions to of printing and publishing in thle city of Aimn

Page  7 47i)GEk CHtI4RSTIANCY$S OPINION.7 Arbor; (and more especially) Iromn printing or 316.386, for the damages sustained by complainpublisning, or beilng directly or indirectly en- ant after the making of tihe contract with gaged or interested in printing or publishing, i Beal, and prior to the commencement of this ia this State, the Second Receipt Bool;k (specify- sui, in consequence of the carrying on by the ing fully its title), so long as complainant shall defendants of tne printing and publishing continue to carry on the printing and publisih- business in the city of Ann Arbor, and the ining business in tile city of Ann Arbor, and to terlering with and withholding the letters and print and publish the First Receipt Book- correspondence pertaining to said business, in mentioned in the contract-but we do not un- violation of the rights of complainant, as stipderstand thIis portion of the decree as aimnied ulated in the cointract between Chase anid Beal, at or intended to affect any right of Chase as 1 and that comnplainant recover his costs to be an author of the Second Receipt Book or any taxed —that execution issue, etc. othler book; but nierely to restrain hinm from Tlls last decree was also appealed from, and the business of printing and publishing the was argued in this Court at tilhe January terml book in this State. -so that both appeals are now belore us lor 2d. The decree restrains the Anii Arbor disposition. Printing and Publishiiing Comlpally from carry- It is objected by tile defendaints that tile secing oin or continuing tile business of printing ond decree, or that disposimig of the questions or publishing in this State, in cozection with reserved upon making thile first, is void, being tihe de/'endaet Chase, or wherein said Chase shall madle after the cause upomi tile nrst appeal was be directly or indirectly engaged or interested, pending in this Court; and reference is niade and (miiore especially) froni printing or pub- to Sectiomt 5181, (Jomp. L. 1871, which provides 1ishing ii cornectioit as partners or otherwise that upon tile entering of such appeal "all with soid Chasee or for his benefit inll whole or in further proceedings in the cause in the Circuit part, within tile State, -the Second Receipt Court in chtiancery shall be stayed uiitil otiherBook, so long as co1mplainant shall remain ini wise ordered by tile Supreme Court." But i notthe business of printinig anid publishing in withstanding this statute, we have frequently Annl Arbor, and slhall continue to print and enterttained appeals from decrees which dispublish tihe F'irst Receipt Book. But this de- posed only of a part or some particular branch cree would allow eithe:r Chase or the Printing of a cause; and any decree or order may be and Publishing Company to go into the busi- appealed fromn, which disposes of tile rights of ness of printing and publishing tile Second a party upoii any independent branch of a Receipt Book, whenever Beatl should cease aind case. even thougli tile case, in some other of its give up the business of printing aiid publish- phases, may not yet be ripe for a hearing. And ing the First Receipt Book at Ann Arbor; and we have never held, inor do I think it has been the decree is thus far less extensive thtan the the understanding of the profession, that this restraining clause in the contract. statute prohibited any further proceedings in After thus disposing of so mluch of the case the court below upon a separate and indeas depended upon the validity of the restrain- pendent branch of thile case which could in no ing clause of Chase's contract, this first decree way affect the branch of the case covered by proceeds as follows: the appeal. Again, if the further proceed"It is further in like manner ordered, ad- ings prohibited by the statute were underjudged and decreed, that as to the letters in stood to include any other proceedings thian relation to said business in said contract in such as might otherwise be taken by or at the said bill mentioned, tile injunction heretofore instance of the parties-which I think may be granted and issued in this case be and the same questionable-still I can hardly thinlk it was is hereby retained and held in full force and intended to prohibit a judge, who had heard a virtue as modified by this Court on the 4th day whole case, and had decided, and made a deof September, 1873, until the furthier order of cree upon a single branch of it, from taking this Court, and that the question of damages further time to consider and dispose of other and costs to be recovered by said complainant branches of it, in nio way affecting the first. in this cause, as well as the changing or modi- The object of the statute, I think, was that fying of the said itijunction in regard to tile this same question or subject matter should receiving of the letters aforesaid, and all ques- not be subject to litigation in both courts at tioins involved in this case, not finally disposed tile same time. It was not the Iault of the apof by this decree, be and the smme are hereby pellee that the Court did not decide the vwhole reserved for the further consideration of this case at once and make a decree upon all its Court." i branches at the same time, and lie ought not From this decree the defendants Chase and to be made to sufier from this action of tile the Printinig and Publishing Company separ- Court. And it would b:, tht, height of injustice ately appealed to this Court on the 24th day of to him to hold that he had lost the whole bemietune, 1874. TIle return of this appeal, with all fit of his bill, and of thile litigation upon all the pleadings andi proofs, being filed in this branches of the cause not covered by tile first Court in July following. This first appeal was decree, b&cause the judge, without any agency argued in this Court, in October last. But ili of his, had chosen to decide a part of it on one the meantime the Circuit Court, on the 16th day and a part upon another. September, 1874, proceeded by a further decree At most, tihemefore, in my view, I think this to dispose of the other questions in the case, action of the Court should be treated as a miere the further consideration of which had beeiin irregularity; and justice requires either thilat reserved on the first of June. the case should be sent Oack for a re-hearing'T'his latter decree is in substance, that Chase or reconsideration, as a whole, upon the pleadand the Printing and Publishing Company, ings and proofs, to enable thile Court to minake their counsellors, attorneys, etc., do absolutely one complete decree covering all bi anches of desist and refrain from taking or receiving the case —which we must assume would be the from the postoffice in Ann Arbor any letter or same in effect as the two which we now have; letters received or that may be received at said or we should overlook tie irregularity, if it be office, addressed to said Chase, which shall not one, and treat the case as now before us uponi nave upon thein a designation of the number both decrees, as one. I think the latter tile of said Chase's private letter-box at said office, true course, and that it would be idle cereor in any manner interfering to prevent the mony and gross injustice to the appellee to delivery of the sanme to complainant, and from send it back. appropriating to his or their use any such let- We proceed, therefore, to tile consideration of ters, or any informatlon therein contained, or the case upon its merits. any money drafts or postoffice money orders, The first question arises upon tihe validity of transmitted in or with any such letters, so long the restrainiing clause in tile contract. as complainant shall continue in the business It is objected that this is void: and upon this of printing and publishing in said city of Anmi ground defendant, Chase, while retaining tile Arbor. And further, that said Chase and said large consideration that was paid him for time Company do pay to complainant, and that property and business deliberately proposed to complainant recover of them, tile sum of $10,- disregard his promises, and time other defend

Page  8 S 1J.UDGE CI-IISTIANCY'S ()PINION. ants joined him in hiis attempt to tbuild up t I anda half ago-Land for a condition of things business that.must depend for its success onl anld a state of society whlolly different fromt the substantial destruction of that which Chase those which now prevail. It may have been had sold and been paid for, and which he had quite true at that time that to a person followagreed not to compete with. And this objec- ing any particular trade, profession or oc;upa tion presents for our consileration ttle princi- tion i n Lonidon, it would be wholly immaterial pie point in the case, and the one to which whether any other person was or was not folcounsel directed their chief attention. lowing the same trade, profession or occupaThe precise ground of supposed invalidity is tion in Newcastle, since the little busithat tile contract imposed upon Chase a general ness intercourse and the difficulty and restraint of trade; and this, it is said, is void delay of communication would wholly by the ancienlt common law of England, fully preclude anything like competition,eaccepted and universally followed ill th ls tween two persons in the same occupation country. The restraint consisted ill his bind- I thus circumstanced. tiut it cannot besai(l that ing himself not to engage in the printing and thle same lftct is true any longer in England. publisihing bl)siniess anywlere in the State of or that it could be true of the State of MickliMichigan, while Beal should continue to carry Igal to-day. In some occupations it is well on at Ann Arbor the business which was the known that rivalry and competition are active subject of the contract. The invalidity is sup-! between professional men, artisans and Imerposed to be shown iy- a great number of au- chants, located at extrellle points, and thtlt in thorities to whic(h our att ettltion has been call- some cases this competition may be quite as ed, beginning with llitchell v. Reynolds 1 V Win. I severe and effective at a distant point as in the 181 (1 Smith Leacling Cases, 172),where the doe- same locality where another is located. Indeed trine relied upon first finds distinct expression. in somine cases where a single house is colepeThat case was debt upon a bond, conditioned tent to supply all the demlands of a State in its that thedefendantshould not exercise the trade line, or when one manufactory would be fully of a baker within a certain parish fi)r thie term equal to all its wants, the one establishment of five years; and Chlief Justice Parker in de- would not only have an interest in keeping out livering the opinion of the Court, while hold- I any other, but it would be interested to tile ing the boind good, and the restraint upon trade whole value of its business, which tile coInpeto the extent imposed( by it perfectly legal and tition Inight render utterly worthless. If, unobjectionable, provided it was based upon therefore, we look only to the interests of the sufficient consideration, went beyond the case parties contracting, there would seem to be to a general discussion of restraint of trade, no thing in the reasons assignled, by Clief land laid (lown irules which, though quite un- I Justice Parker, which should necessarily prenecessary in the particul.:r controversy, have i elude a contract as broad as the one here diswvitil some mnodifications and qualifications putled, provided the proper interest appeared to been accepted as law and followed from that support it. time to the present. All general restraints up- It is said, however, that the public is a third on trade he held to be void; and a restraint Iparty in such cases, anc that tle public is conwas said to be general within the ameaning of cerned to prevent such contracts because: the law, waichl extended tothewholekingdomn. 1. They tend to prevent competition, which Apparently regarding all contracts in restraint the public interest favors, and of trade presu iptively illegal, he nevertheless, 2. They deprive the State of the services of a classifies therm as follows: " Whiere the re- citizen by bindinghim to idleness or emigrastraint is general not to exercise a trade tion. throughiout the kingdom and where it is limit- As to the'first ground it may be said it is ed to a particular place. for the former of these quite true the public are interested in compemust be voi(l being of no benefit to either tition in business; but this is not true under party, and only oppressive, shallbe shown bye all circumstances nor to every extent. The anred ye;" p. 182. And again he says such a public is quite as muchd interested in the prosrestraint could " be of no use to the obligee; perity of its citizens in their various avocawhich llolds in all cases of general restraint tioms as it can possibly be in their cornpetithroughout Eniglarnd, for what does it signifly tion. The latter may bring low prices to purto a tradesrian in Londron what another does chasers, but may also bring them so low that in Newcastle? and surely it would ble uinreas- capital becornesunprodttable and business men enable to fix a certain law oil one side without fail, to tihe general injury of the commllunity. any benefit to the other. The Roman Law If only one publishing house of large capital would niot entforce such contracts by an ac- could be prosperous in the county of Washitetion."' The groulld of the invalidity, then I naw, the people of the county can have no inseems to be the imipossibility that so broad a terest in the investment of large capital in a restraint could be of the least use or benefit to second, and tile sharper the competition the the partyv imposing it. in which case it is per- more unfortunate for the people, it ruin to the fectly correct to speak of the contract as wholly parties concerned must result. The illustration oppressive. anId in so far a* it tended to de- holds good for the State when the particular prive the public of the benefit that might be busines competed with is of State interest and conferred by the labor and skill of a citizen, it importance,for no community can be benefited would b)e contrary to public policy. Again the by the competition of its members where it is learned Justice says, "Tl'here is more than a carfed beyond tlhe bounds of a reasonable presumiption against it, because it cae, never be prosperity to the parties engaged in it. This is seejul to any rnan to restrain anotherfrons trading fully recognized by Chief Justice Parker in in, all plerces; tllougil it rmay be to restrain him 3Mitchell vs. Reynolds, who assigns as one reason trading in some, unless he intends a monopoly, which may support contracts in restraint of wlhich is a crime," p. 193. And in conclusion trade, "'lat there may happen instances wherehe says, "In all restraints of trade where noth- in they may be useful and beneficial. as to preing more appears. the law presumes them bad; vent a town from being overstocked with any parbut if the circumnstances are set forth, that I ticular trade; or in case of an old man,who findpresumption is excluded, and the Court is to ing himself tnder such circumstances, either of judge of those circumstances, anrd determine body or mind, as that he is likely to be a loser accordingly; and if upon them it appears to be by continuing his trade; in this case it will be a jtust and honest contract it ought to be miain- better for him to part with it for a consideratained," p. 197. tion, that by selling his custom hie may proThis case is the foundation of the rule relied cure to himself a livelihood which lihe might upon; and the dictum of the learned Judge probably have lost by trading longer." p. 190. most unequivocally shows that the reason for If then their tendency to preclude competition his opinion that a restraint coextensive with may be a reason for denying validity to such the kingdom would be void, was the impossi- contracts in some cases, their preventing it bility tiat one man could have an interest in seems to have been found a sufficient reason a restraint so broad upon the trade of another. for upholding them in others; so that compeThis decision was made more than a century tition seems not to be regarded as necessarily

Page  9 JUDGE CHRISTIAN CY'S OPINION. 9 in itself beneficial, but as something whicll eration, agrees that he would remove his share may or may not be beneficial according to the across thie river to Duluth, and not again encircumstances. And it may well be asked who gage ill the business at Superior City; but this in general are the best judges of these circum- agreement, though perfectly reasonable, constances; the parties concerned who havean in- sidered with reference to tile individuals only, terest in making them the subject of their con- would oil this doctrine be void, because a State tracts, or the Courts who can itain of the cir- policy which has comne down to us from a senmicurnstances only such partial and unsatisfac- civilized or less enlightened times, when governtory views as conflicting and imperfect evi- melats evere accustomuzed to prohibit (trtisauls JIrOLr deuce can give them? leaving the reanlm, and gold and silver f'romt beingl As to tile second ground it must be conceded I exported, is suppos'ed to be violated by thle tractesje' that the State has always an interest that none o the industr'y and capital fJ a cltizen across a of its citizens shall be kept iu enforced Idle- liver into another Slate. 7'ie pgsitonl seet/is to us ness. But when a contract only bindsa person ito require nof'urtiher attention. not to engage in a particular business withitn It may be well now to examine some of the the State, is this consequence a necessary or later cases to see if they have enlarged tile reaeven a probable one? It certainly might have sois upon which the rule of law relied upon beeii so in England in the days of Chief Justice by the defelldants was originally rested. In Parker, when a system of apprenticeship pre- Davis v. Miasoni, 5 TR., 120, Lord Kenyon in susvailed which rendered it exceedingly difficult taiinng an argumenlt restraining onle fromn I'or one to obtain a living by his industry in practicing as a surgeon within ten miles of a any other avocation than that for which he certainl town, dismlssed the objection that it had fitted himself by serving his time under restricted competition by saying that tile pubits'rules and under the law, but inthis country lic were not likely to be injured by anl agreeat this timue where a change of occupation is ment of this kind, since every other persoll too common to excite remark; where rer- was at liberty to practice as a; surgeon in the chants become manufacturers, and lawyers town. In Howe v. Ashford. 3 Biny. 326, Best (,h. J., larmlers, and farmers traders, not because they in passing upon a contract of partial restrailtr. receive a consideration for doing so, but be- says:'- Tlle law will not permit any one to recause withllarger opportunitiestorobservation strain a personi frona doing what the public thian they had at first, they have fully satisfied weltfare and his own interest requires that he themselves that such changes will be for their should do. Any deed, therefore, by which a advantage, as oftentimes they prove to be- person binds himself nQt to enploy his talents, any rule of law which should assume that one his industry or his capital in any useful underwho for a consideration bargains not to follow taking in the kingdom would be void, because his previous business, had thereby bound him- no good reason can be i7ragined for any persoex iraself to idleness and penury, to the detriment posing such a restraint on himself. But it may of the State, would be at rule absurd in itself, and often happen (and the present case is a strong contrary to general experience and observa- instance of it), that individual interest and tion. Oi the contrary, where such a contract general convenience render engagements not is the result of l'air bargaining, the reasonable to carry on trades or to act in a profession, in a presumption is that each party, in view of all particular place proper. Manufactures or the circumstances which were within his own dealings cannot be carried on to any great exintimate knowledge, was able to see how tile tent without the assistance of agents and bargain was to result to hisadvamltage, and that servants. These must soon acquire a knowlthe party resigning the business did not do so edge of the manufactures or dealings of their without being fully satisfied that he was re- employers. A merchant or manufacturer ceiving full equivalent, which would be more would soon find a rival in every one of his seradvantageous to him than the property and vanits it'he could not prevent them from using the business sold. Aind where a man has fully to his prejudice the knowledge acquired in his decided to sell his business to take up another, employ. can there be any reason of state policy why he Engagements of this sort between masters should be precluded from bargaining for the and servants are not injurious restraints of additional consideration he can obtain by trade, but securities necessary for those who agreeing not to engage in the same business? are engaged in it. The effect of such contracts If a man can sell his business for ten thousand is to encourage rather than to cramp the emdollars only, but the purchaser will give twice ployment of capital in trade, and the promoas much in case the seller will agree not to en- tiou of industry Here is the same recognigage in a ruinotiscompetition with him, what I tion of the fact that competition is sometimes interest has the public in denying to the seller injurious, which we find in Mitchell v. teynoltds, the right of selling for this additional sum, or and here also we see that the public interest in releasing him from his bargain, if after he which is to render the contract void is not any has received it, he shall coolly repudiate this por- general public interest irrespective of the intion of his contract, while he keeps the consid- terest of the parties, but an interest that no eration he has received for it. If there be any one shall be restrained in his own proper action sufficient reason, it was not presented on the where benefit can possibly result to no one argument, and it is not hinted at in any of the from the restraint. cases to which our attention has been directed. | In Homaer' v. Graves, 7 Bing. 735, an agreement And it certainly can be no sufficient objec- that a moderately skilled dentist would abtion to such a contract that it may possibly re- stain from practicing over a district 200 miles suit in one party going beyond the State limits in diameter, was held void on the express to engage in the same business anew. What if ground that the extent of territory covered by it shall do so? Are our interests as a State so it was beyond what, in view of the local charpetty or exclusive and our policy so narrow acter of the business, could be reasonable. And and invidious that we frame rules to keep peo- Tindall, Ch. J., said: "We do not see how a pie within the State contrary to their inclina- better test can be applied to the question, tion, or when it would be for their interest to whether reasonable or not, than by considergo elsewhere? Yet this narrow, illiberal and ex- ing whether the restraint is such only as to elusive policy must certainly be relied upon, if afford a fair protection to the interest of the the tendency of a contract to induce a con- party in favor of whoin it is given, anld not so tracting party to leave the State is to defeat the large as to interfere with the interests of the contract. If such a position is sound, then a public. Whatever restraint is larger than the contract made in this State for the services of necessary protection of the party can be of no a citizen at Chicago, or any other point outside benefit to either, it carl only be oppressive the State, should be treated as void here, be- I and if oppressive, it is in the eye of the law uncause depriving the State of the benefit that reasonable. might flow from the industry of one of its citi- i No precise boundary can be laid down withzens! Or to take a case still more exactly iln whichi the restranut would be reasonable, parallel: Partners in trade at Superior ('ity and beyond which excessive." In Ward v. might divide their stock, and one for a consiad- Byrne, 5 Al. &d W. 5/7. The rule by which all the 2)

Page  10 1. JUDGE CHRISTIANCY'S OPINION. Cogurt proposed to try the reasonablenessg of a they were held I)ratna facie bad; according to restraint upon trade, was whether it was only I the tenor of the later decisions tile contract is co-extensive with the interests of the person valid unless some restriction is imposed bewith whom the contract was made. In WVal- yond what the interest of plaintiff requires; lace v. May, 11 M. & V. 667, a contract excluding and his interest has been considered to extend a dentist from practice in the city of London, very widely." then containing a population equal to more And he makes remarks in the case which apthan two-thirds that of this State now, was ply with great force to the defendant in this sustained, the Court again measuring its rea- case. Chase, who having obtained a large suml soni bleness by the interest of the party con- on the sale of a business which he represented tracting for tile restriction, and declaring that as extending to the whole State and much te"it would be better to lay down such a limit yond it, now turns around, and on evidence as under any circnumnstances, would be suffic- that his representations were too large, and on ient protection to the interests of the contract- the pretence of regard for some prilnciple of ing party, and if the limit stipulated for does State policy, whichi is to be subserved by his not exceed that. to pronounce the contract to I breach of contract seeks to retain the considerabe valid." How this can be reconciled x: ith a i tiol while repudiating the promise on which he obrule which under all circumstances would con- tained tt. "The facts of the case," he says "are fine the restriction within the limits of State strong to show that the general rule may be boundaries it is impossible for us to under- well applied in respect to the present defence. stand. Such boundaries have little or no re- The defendant * * was probably aclation to the range of many kinds of b)usiness; quainted with the business to which the covfor trade heeds not the mathematical lines by enant relates. He stipulated for, and obtained which State limits are indicated, but follows a large price for consenting to the restriction; everywhere the law of demand and supply, and as Iaras we can perceive, he is endeavorunless unfriendly statutes interpose. ing to keep that price without making the reLord Langdale in Whittaket v. Howe, 3 Beav., i turn for which it was paid; and he is attempt383, expressly repudiatedl thie doctrine that a, ing to support this proceeding on the grounnl general restriction extending to the whole that the public interest would be sacrificed, if kingdom. was to be held under all circum- 1 his publicationsare not brought out. It is clear stances unreasonable. The contract in ques- thut there would be evil if the law justified such/ a tion imposed upon attorneys and solicitors breach of contract. but it is by no means clear who had sold their business, a general restraint there would be any compensating good to the from taking it up again. This learned Judge i puolic from the publications intended by the treated the question involved as one of reason- defendant to be so made in violation of his ableness, considered from the standpoint of I promise to the plaintiff." the contracting parties; and declaring his con- The true rule, it seems to us, is laid down curence with the Court of Common Pleas in i with great clearness and accuracy by the Vice Homer v. Graves, that in such cases no precise Chancellor in Leather Cloth Co. v. Lorsont, Law boundary could be laid down, but the circum- R. 9 Eq. 3L0, 353, in which, referring to the argustances of the particular case must determine Inent that a general restraint, extending to the it, he accepted and adopted the words of Lord whole kingdom is on its face bad, he says: "I Kenyon in -Davis v. Mason, I, T. & R. 118. " I do i do not read the cases as having laid down that not see that the limits are necessarily unreas- unrebuttable presumption which was insisted onable, nor do I know how to draw the line." upon with so much power by (counsel). All An injunction was therefore awarded to re- i the cases when they corme to be examined seem strain a breach of the agreement, to establish this principle: that all restraints Some question has been raised upon the ecase upon trade are bad, as being in violation of of W/hittaker v Howe. and it is said it cannot public policy, unless they are natural and not stand with the other authorities. If those unreasonable for the protection of the parties which declare a restriction co-extensive with in dealing legally with some subject matter of the State are to be understood as laying down contract. The principle is this: public policy an inflexible rule, then it certainly cannot requires that every man shall be at liberty to stand with them; but if they are to be under- work for himself, and shall not be at liberty t.o stood as giving only an illustration which in deprive himself or the State of his labor, skill most cases will sufficiently indicate the un- or talent, by any contract that he enters into. reasonableness of a restraint, then it may well On the other hand, public policy requires that stand with them, if the reasons upon which it when a man has by skill or by any other is based are the same which other cases have means attained something which he wants to applied to different circumstances. And that sell, he should be at liberty to sell it in the most the reasons are precisely the same has already advantageous way in the market; and in orbeen seen. Those reasons were applied again der to enable him to sell it advantageously in by Lord Campbell in tyallis v. Fallis, 1 El. & B1., the market, it is necessary that he should be 391. 18 E. L. & E., 151, in which a covenant not able to preclude himself fr om entering into competo engage in the book canvassing trade in' tition with the purchaser. In such a case the London, or within 120 miles of the General same public policy that enables him to do Post Office, nor in Dublin or Edinburgh, or that, does not restrain him from alienating within 50 miles of either, nor in any town ill that which he wants to alienate, and therefore Great Britain or Ireland in which the coven- enables him to enter into any stipulation, antee or his successors might at any time have however restrictive it is, provided that restrican establishment, or might have had one for tion, in the judgment of the court, is not unsix months preceding, was held not to be un- reasonable, having regard to the subject matreasonable. Here was a restriction which. ter of the contract." Precisely the same rule considering the territory covered by it, was is laid down in Morse Twist Drill and Machine more extensive than that which these defend- Co. v. Morse, 103 Mass. 73. 77, which was the case ants question; and considering the population of a restriction not confined within any territo be supplied was many times as extensive, torial limits, and in which other recent Enand the business was analogous to that which glish cases to the same effect are referred to. was here restrained. Would it not. therefore, And Chapman, Ch. J., well remarks:': In this be absurd to say that the restriction in this country there are periodical publications that case must be considered unreasonable, because have a very wide circulation, and it is obvious it embraced the whole State, but that the one that a purchaser of the proprietorship cannot in that case must be held reasonable because afford to pay the full value, unless he can obcertain corners of a much more extensive and tain from the vendor a valid restriction against populous country might possibly be left open competition, which restriction shall be as exto occupancy by the covenantor? Lord Camp- tensive as his interest requires, though it may bell, reviewing the earlier authorities. justly cover the whole of a State, or the whole country. remarks that " the law relating to contracts The same would l)e true as to some books. For in restraint of trade has been altered by late de- example, the author of a popular school book csions; and that., while in,itehell/. Reynolds, could not sell its proprietorship for its full

Page  11 JUDGE CHRISTIANCY'S OPINION. 11 value unless ihe could bind himself not to pre- most irnportant of tll, is /h/e eeislence of this coe,pare another book whichl should be used in tract. All but one admnit i: to hacve been the subject competition with it. The same would be true of their consultatiotns, and if Chlase fliled to apas to some manufactured articles. The pres- prise that one of it, we can only say he was ent case ftrnishes an illustration. The(lelend- wanting in that good faith to an associate ant could not have obtained the consideration which was obviously incumbent upon him. which was paid him if it had been understood Now it is not denied that had the organization that this contract which he has violated had assumed the form of a partnership, Krause ino validity. He is appropriating to hinmself a would have been charged withi constructive part of that which he has sold to the plaintiff, and notice. To hold that he is not so charged bewhich is valuable property to them." And the cause, for the convenience of the business, the same general view was taken by the Supreme organization was made to assume a corporate Court of the United States in Oregon 8team form, is to base an Important distinction on Navigation, Co. v. Winsor, Val.. in which it was what seems to us a wholly immaterial circumnexpressly declared that the-State limits are no stance. tests of the reasonableness of a contract in re- Thie probability that Krause would have nostraint of trade, and that much latitude must tice in fact is the same in the one case as in be allowed to tute judgment and discretion of Ihe other, and the reason why the association parties who bargain for the restraint in view! thus formed for a violation of tile contract and with an intimate knowledge of their own with complainant should respond for the conbusiness interests. And a restraint was held sequences, are not varied in tile slightest devalid in that case, though it embraced the gree by its taking on ai corporate formn rather whole Ierritory of a State and even more than than any other. that. If Krause had innocently bought into the We (lo not deem it important to examine the business afterwards, some other considerations cases further in detail. It is manifest that if it would need to be discussed; but lie was one of could fairly be regarded for the interest of the original associates. Thestock all remained Chase, when lie made this contract, to consent in the nands of the original subscribers when to this restriction, because of a greater ability the injury to comylainant was committed, and to sell at a good price if' he would do so, and it seems to us a manifest absurdity to hold for the interest of Beal to insist upon it, be- that the neglect of his associates to lay before him cause it would protect him atgainst the compe- a fact so important to their enterprise, whenr good tition of Chase and give him a more reasonable f'aith to him required that they should do so, should prospect of business success, then the restriction protect the association against the consequences of CANNOT BE HELD VOID WITHOUT DISREGARD- this deliberate violation of contract rights. Not ING ALL THE AUTH[ORITIES WHICH REST UPON assuming to lay down any general rule, but any SOUD principle. And we thinkthere is every confining what we have to say to the precise REASON for holding that presumptively it was facts of this case, we are of opinion that this corfor the interest of both parties to agree upon poration is and ought to be jointly responsible with the restriction which was expressed in their Chase. contract. The one made a sale for a greater T'he defendants also insist that complainant price by this means, and the other protected lost his right to proceed against them by laches himself against a competition which the evidence in commencing suit. Lacthes is a most imin this case shows might easily have become portant circumstance where parties are proruinous. ceeding to expend money in reliance upon a And the best possible evidence that it was.supposed right, and upon the apparent acquifor the interest of both parties to make the contract, escence of the party who might question the is, that they deliberately made it, and probably at right. But in this case defendants were misthe time with the fall intention of observing led by no acquiescence. They entered upon it. Certain it is that it was faithfully kept for their undertaking in open and known hostilatime. What induced Chase afterwards toad- ity to the complainant, and in reliance, not vance step by step, in its violation, it is need- upon his acquiescence, but upon their ability to less to speculate; we have only to determine defeat him in a legal contest. They knew from whether his conduct was in disregard of the law; the very first that their position in respect to and we are clearly of the opinion that it was. And this contract must be antagonistic to that of we are also of opinion that in view of his rep- complainant, and no consideration of good resentations and his contract, he is estopped faith on his part could require that he should from denying that the business he sold was open the legal warfare at the very earliest opco-extensive with the State. That the defendant portunity. When a hostile attitude is thus corporation is liable to complainant to the full ex- taken the challenged party may justly be extent that C(nase is, would seem to be clear, unless pected and reasonably be allowed to be wary the fact that Krause testifies to an ignorance and deliberate in choosing his time and opforof the contract on his part when he became a tunity for attack. The delay in filing the corporator, should be found an important cir- present bill was less than a year from the orcumstance. The other corporators knew about ganization of the corporation, and in the mean the contract, consulted about it, made up their time a bill on a collateral branch of the conminds it could not be enforced, and deliber- troversy had been filed and important action ately concluded to take the risk. They cannot taken upon it. It is impossible, therefore. to complain, therefore, if having thus voluntarily hold complainant guilty of any laches which participated with Chase in a deliberate injury to these defendants are in position to complain the complainant's business, they are left to share of. He might have moved sooner; but the law with him the consequences. Had defendants con- does not demand the utmost exertion of dilistituted a partnership instead of a corporation gence in repelling a hostile invasion of one's the joint responsibility of all would have been rights thus deliberately taken with full knowlclear, and notice of the contract to one would edge of all the facts. have been notice to all. It is insisted, how- It is denied by defendants that the Court had ever, that no such rule can be applied to cor- any power to award damages in the case; the porators, and the absurdity of holding a rail- question of damages being, they insist, peculiroad corporation, for instance, chargeable with arly one for the consideration of courts of law. notice of anything that may be known by any In support of this position a number of Enpersons who may buy a share of its stock, is glish cases are cited, in some of which, decided forcibly pressed upon our attention. Such a since Lord Cairns' Act (21 and 22 Victoria), case has little if any analogy to the present. which expressly authorized the court of chaunThis is the case of six men who unite in a cery to give compensation in damages in some business usually carried on by partners, who cases, it has been stated by the court that premeet and consult, and talk over their plans as vious to that act chancery had no power to partners are accustomed to do, but who avail award damages. Whether these statements themselves of a corporate organization, not as were meant to be understood literally, or a necessity, but as a possible convenience. whether on the other hand they were intended Among the things talked over, and probably the to be understood only as statements that pre

Page  12 12 ~JUDGE CHIRISTIANCY'S OPINION. vious to that Statute thile c()urt had no power I Chase had. by the same instrument, conve yedl to graut relief il datimaiges wlliel il other reiet' to leal the whole prilning, binding aid lubwas givyen, is not very clear, iand perhilaps not I lshing estallishmelnt. an busilness, the ir'11st very imnportant. Itelief was certainly give in i Rteceipt Book, thile publication and sale of wlicls some cases in the Englislh court of clhancery constituted the principal source of pi oit and by an award of damages, previous to the pas- inducement to tile purchase, the newspaper lie sage of that act; and there are decisions whichv whas publishing, with its subscription list, and even go so far as to lhold that damages nighit his right to two other books, together with thle be awarded in cases of specific perforimalicr, good will of the business of printing aInd pubeven though the principal relict sougiht was lishing, and the right to use the name ol Chase dleniedl.'ITie leading case of Denton V. Stuurjt, ii connection witlh said book and the publish1 Co%. 258 referred to in 1 lbob Eq. 4I et sq., ing business, givinlg him also the right to carry which holds i his doctrine is overruled in En- Ilon the wiiole busiiness transferred, under tleI gland, the Mnaster of the Rolls holding in Gre. niaue of "Dr. Cnase'sStean Printing House," anaw(l ay v. Adts, 12 Ves. 401, that wliere stecific and Ihad required Beal to fulfil all contracts relief ws ellied, eithliier because inimproper previously eniitered into by Clhase. Thie correunder ilie licts, or' because it was lnimpia'ti- spoldelnce had lbeen anid was maiiily ini refercable, tliere was ni( bas;s Ifo iiiy realie' ill datln- eiice to the Rceipt Book and its sale, letters ages. ai(i tlhe Iarty joust be tuvnc'd over to Ixs transiiSitinig orders'or the book0 aid ieliii tremedy it l'w. s-ee also sbdd v. Gee, 17 }sa. 27. tanees ill various for;ms to pay for it, aA well as I)enton v.'tart 1hns sotmetimiies ithell lollowed orders'or work to be done ii pmrilitllmg aiid in this co Iiry. i s ee Anal res v. Brown $ C'hi binding. Tlhese. letters, like thile few chase had 134; Ph7illips v.'lholpsol,. 1 ahn. C/h. O150; but )een receiving which (lid n(t relite to tlhe busCtliatneellori Kent decliied to hoilow 111s owll i miess, 1had mol hing tipon thie ioUtSie to indicate decision sutbseueliltly, hiolding i llutch ri:. Cobb. whether they relatecd to the busiicss, ~Or wvere /4 John1s. C(:53. 50and again imi AK~nipahell v. Stoie, private, oir nerely persona;tl, hlaviii, no refer5.johls. C'h. 193, that Lhe court ouglit not, cx- eiice to the business.'Those thtis dcirected, cept in very special cases, to sustain a bill for however, which did not relate to the businiess the award of damages.ierely. But in nieither were extremely few in comparison witi tlihose of these cases was the authority of the court, which did-not more than one in five hunidred, after granting the principal relief, to award if more than one in a thousand. Until openled damages, where it was necessary to do corn- it could not be known whethei any particuiar plete justice between the parties, denied or letter was of the one class or the other, though questioned; and its right, and indeed its auty the chances were five hundred or a tiiousand to do so, instead of turiing the parties over to to one that they related to the business sold to a second litigation, has olten been declared in Beal, and therefore belonged to him. One this country, in reliance upon what was be- party or the other must have the right to open lieved to be the settled rule in England irre- them and determine their character (unless spective of any statute. Anid the cases are by some third person was agreed upon, which was no means confined, as was argued by counsel, not done). This right was therefore very propto those in which the award of damages would erly and necessarily given to Beal, who had so consist in an adjudication as to profits; but much the greater interest, and without whlich most ol them are cases of specific perfbrmance he could not safely carry on the business lihe whlere the plaintiff' established his right, but had purchased. And though the contract does the defendant was unable to perform fully. or not express it in so many words, no one canr perhaps, after suit brought, had disabled him- -doubt that the fair implication arising front self' from performing at all. tlis contract would be that if Beal on opening The right of the court to award incidental any letter should fiiid it did not relate to the compensation where its jurisdiction is made business he had purchased, but to Chase perout, is not, however, by these cases made to sonally, it would be his duty to hand it to depend on the natture of thile principal relief, Chase, or give itLthe proper directions to reach but on the fact that the parties being properly him. And it is entirely obvious also that before the court for one purpose, complete jus- Chase had it in his own power, and would nattice ean be more easily, speedily and inexpen- uirally. like any other prudent man under like slvely done beta een themi as to all the matters circumstances, take a private box. and notify embraced in the suit, by the adjudication of most if not all his personal or priv te correthe court of chancery being made to embrace spondents to address their letters to this box, themn all, than by a decree as to a part which or give the number of his residence, or in some dismisses the case with a view to a suit at law other way to denote that it was intended lor as to the remainder. See King v. Badleam, 6 himn personally; and this we accordingly find.Johns. Ch. 38; lViswall v. McGowan, 1 Hoff. 125; was precisely what he did.,Same case on appeal. 2 Barb. 270; Cathc'art'v. Rob- In view oi these considerations, I think it inson, 5 Ret. 263; Climie v. Heale, 1 Muef. 63; Tar. entirely clear that the order and directions ner v. laytori. cited in 1 Ohio, 130; Gibbs v. Chain- given to the postmaster immediately after the pion, 3 Ohio, 337; Willianms v. Champion, 6 Ohio, sale, in reference to the delivery of the corre170; Dustin v. Aeweomer, 8 Ohio. 49; Jonesv. Hat- spondence to Beal and his right to take the rison, 3 Heyw. 92; Slaughter v. Tindle, 1 Litt. 338; same and its contents, to sign and receipt for White v. Ilardin, 5 JPana. 141; Wtstham v. Aidham. these same in Chase's name, was no more than 9 Datna, 50; Chapman v. ill R. & L. E. B. B. Co., 6 the fair result and just interpretation of the Ohio. N. S. 119; Doggath v. Hart, 5 bIer. 215; Mar- covenant in his own contract witlh Beal, and tin v. T'idwell, 26 Ga 332; Brown v. Garlder. Ha.. no more than by his contract he was bound to Ch. 291; Uarol v. Rice, Walker's CAI. 273. These do. I cannot, therefore, consider it, as concases and numerous others in which the same tended by the defendants, a mere voluntary doctrine is incidentally recognized, were the license given by Chase. and to be revoked at warrant of the Circuit Court in giving corn- his pleasure, nor even a new verbal contract, plete relief in the case. but a part and a very essential part of the We now come to the question of the corre- property rights conveyed by Chase to Beal, spondence. which hlie had no more right to revoke than he What is the fair meaning and extent of the hiad to revoke the sale of the printing presses covenant at the close of the contract, that or the real estate sold at the same time, and as "said Beal is to have the privilege of receiving a part of the same transaction. the letters connected with said business and It seems to me, therefore, clear, whatever opening the same"? This camn only be under- view might be taken of any other question in stood by reference to the subject matter and the case, that the complainant is entitled to a the surrounding circumstances to which the decree for carrying this portion of the contract covenant relates, the nature of the "said" into full effect, and to an injunction restrainbusiness, the mode in which it was carried on, ing Chase and all persons acting or claining or was expected to be carried on, as well as the to act under his authority, from taking such nature of the correspondence and its connec- correspondence from the postoffice. The detion with the business. cree as rendered In the Court below ought to

Page  13 DECISION OF THE SUPREME COURT. 13 be slightly mnodified In this regard, so that the ceipt for the same and for any of the contents, injunction shall not restrain or prohibit Chase and to sign Chase's name to any proper receipt from receiving from the postoffice such letters to the postmaster for money, drafts, registered coming or to come to this office to his address, letters, postotffice money orders, and other reas may have upon the outside or envelope the mittances enclosed in or pertaining to any number of his residence or any other mark or I such correspondence in reference to the busiword clearly indicating that the same is in- I ess so sold to Beal; but, such written order to tended for Chase personally, unconnected with the postmaster expressly to except all letters the business sold to Beal, as well as those hav- addressed to Chase having on the outside or ing upon them the number of his private post- envelope the number of his private postoffice office box, with the further provision, how- box, or the number of his residenca, or any ever, as a part of this modification, and upon other mark or word clearly indicating that the arne principle that a decree for the exe- such letter is intended for Chase personally, or cution of a deed or release is granted by courts that it is not connected with the business so of equity, that the defendant Chase should be sold to Beal. In all other respects the decree decreed to execute and deliver to Beal a writ- of the Court below should be affirmed, and the ten order, directed to the postmaster, request- complainant should recover his costs in both ing him to deliverall such correspondence (not Courts. specially addres-ed in one of the ttlret modles (-ilgned) just above indicated), authorizing Beal to re- I. P. CHRISTIANCY. DECISION OF THE SUPREME COURT. Rendered Tuesday, April 27, 1875. Rice A. ~Bed! 1 use the name of Dr. Chase, in connection with said books; and providing that the said Beal, VS. on his part, if he chooses, may carry on said Alvan W. Chase and the Ann, Arbor business, and shall have the exclusive right, PrI.h7zthn and Publdshiqg C(ompany. under the name of I Dr. Chase's Steam Printing House,' and may add R.A. Beal, proprieIn this case there have been two appeals ta- tor." The accounts were also transferred, and ken. The last one was from a decree taken some other things not important here. The while the former was pending in this Court, following important provisions are directly and was made as an additional decree upon no involved in this controversy: Chase agreed new hearing, and upon the case as presented to not to engage directly or indirectly "in the the Circuit Court when the first decree was business of printing and publishing in the made.. As the statute expressly declares that state of Michigan" so long as Beal should reon a chancery appeal, "All proceedings shall main in the business of printing and publishbe stayed, until otherwise ordered by the Su- ing in the city of Ann Arbor. Beal was also "to preme Court" (C. L. ~5181), a majority of us have the privilege of receiving the letters conthink that the Circuit Court had no power to nected with said business and opening the make the second decree, and that it should be same." This was in August, 1869. Chase lelt reversed, but without costs, as the return was Ann Arbor not many months thereafter, and not duplicated and thesecond decreewasmade was absent some time in another residence in on the Judge's own motion. We donotdiscuss the West. Just after the sale he gave Beal authe questions covered by it. thority to take from the postofficee all letters Upon the first decree the Courthas arrived at not directed to his private box, and to obtain a substantial agreement, although not agreeing and receipt for all remittances and orders for in all respects, in the reasons on which their money. Beal continued in a prosperous busiaction will be based. They will content them- ness and unmolested, until the course of action selves with as brief a reference as will make complained of began in 1872. their views intelligible. Chase during that year having conceived the The bill was filed to restrain the alleged vio- opinion that his contract was void, as an unlation, or rights secured to complainant in due restraint of trade, began preparation for a connection with, a sale to him by defendant new printing business, and began to prepare a Chase of a printing and publishing business new Receipt Book, and revoked his authority and certain copyrights. Chase had built up a to Beal to obtain the letters not addressed to large and prosperous business in Ann Arbor, the Printing House. known very generally throughout the state and In August, 1872, several persons who had been having a widely extended custom, under the thinking of setting up a Printing establish name of" Dr. Chase's Steam Printing House." ment, but who had done nothing, negotiated He had also published a; very popular Recipe with Chase, the result of which was the formaBook which was circulated largely by means of tion of the defendant corporation, with a nomcorrespondence and agencies, as well as adver- inal capital of $50,000, of which Chase took onetising, and brought in large profits. For a large half. They immediately began a general and adequate consideration Chase sold to Beal Printing and Publishing business, and started his whole establishment, including a newspa- a newspaper, and became formidable rivals of per, the Recipe Book, and other copyrights, Beal. Dr. Chase became, and was announced ~' together with the good will of the business, o0 conspicuously as their President and Business printing and publishing, and also the right to Manager. He prepared a New Receipt Book

Page  14 14 FINAL DECREE IN THE SUPREME COURT. *which was called Dr. Chase's Second Reeeipt are all agreedl tiat Beal was entitled to all corBook, and which purported to include receipts respon(tence intended for lthe ol(l establisllon mlany subjects covering similar ground r mnent, and first Recipe Book, and that ill case with the first, out more extensive and higher- i of doubt, he was entitled to the beiietit of the priced. Vigorous effolts were made to circulate doubt as to its being so intendled. it, as superior to the first, and it was brought We are all agreed that Chase had no right to directly to the attention of persons who had publish by the terms of that contract in Mlichidealt in or purchased the first. For this pur- gan (if valid,) any Receipt Book so connected pose use was made of correspondence intended with his name as to lead to the inference that for the pulblisller of the first book, and persons i. was designed to supersede the old( one. And writing for that were informed of tile publica- we concur ( with some doubt on the part of one tion, and impressed with the superiority, of,I fus) that the New Receipt Book with its title the Second Book. atid announcements has that tendency. Beal filed a bill in 1872 to restrain the publi- Concerning the validity of the agreement, we lication of this Seconld Book. which the Annl concur in regarding it as not unreasonable in Arbor irinting and Publishing Company had lact, and as based on full consideration. One made anl agreemeInt to publish on a royalty. oi us has doubted, whetllher itcould properly inIn July. 1873. the present bill was filel. coni- clude the who;e State, but considering the rule planinlg of all the acts above mentionedl. to the contrary as somewhat artificial, he conAfter suit was brought Chase sold out lhis curs in mnaiLntainiing the agreement. stock. anti retired from the Company. and t lie Although some questions miSlit arise as to ptblicatiotn of the Second Receipt Book was whether a corporation could be restrailned from reilmoved to Toledo. dealingls )rohibited to a stockholder, nierely rihe fii!tl decree enjoined Chase front being becatuse it had such a stockholder, we (lo not elngaged( directly or indirectly in the Printing (liseas- that, because Chase's conncetilon withl aid Publisliing business in this State, or print this Company was something niore; and the ing or publisling the Second Heceipt Book in terms of the decree cannot fairly be wrested this State, and fromnitaking or opening any let- into any unreasonlable meaning. ters relating to Dr. Chase's Recipes or Chase's Our conclusioni is that the first decree should Steam Printing House. The defendant corpo- be affirmed with costs, leaving questions of ration was enjoined from doing said business damages tobe determined at law, and directilng with or for Chase, directly or indirectly. a tiower or authority to be executed whereby We are all agreed that Chase's connection Beal can obtain the letters belonging to him with the business of the defendant Company and making such modifications as are neceswas such as to be a direct violation of his con- I sary to that end, and until such authority is tract, and that the Company knew of the con- executed, that the decree stand as equivalent tract thlrougllout. We are all agreed that the thereto and may be used to obtain such letter.s maeasures taken to get a circulation of the New front the Post Office. Receipt Book, by the agencies and correspond- (Signed) J. V. CAMPBELL. ence which had been or were at any time used T.'M. COOLEY. or desiglled for the first, were unlawful. We B.. (GRKAES. FINAL DECREE IN THE SUPREME COURT. At a session of the Supreme Court of the this cause and in said decree it is ordered and State of Michigan, held at the Supreme Court adjudged that the Complainant is lawfully enRoom in the City of Lansing, on the twenty- I titled to receive directly and the said Chase seventh day of April in the year one thousand shall continue to be enjoined against interfereight hundred and seventy-five. ing with all correspondence coming to the Present, the HonI. BENJAMIN F. GRAVES, Postoffice in Ann Arbor which is directed to Chief Justice. the defendant Chase and which does not indiTHOMAS M. COOLEY, JAMES V. CAMPBELL, I cate by the direction or other plain indications ISAAC MARSTON, Associate Justices. I that it does not relate to the business or to the Rice A. Beal, Complainant Receipt Book which the Complaitnant purvs. chased from said Chase under the contract set Alvan W. Chase and the Ann Arbor Printing forth in the Bill of Complaint, and that said and Publishing Company, Defendants. Complainant is entitled to receive and approThis cause having been heard and considered priate all sums of money and all other valuaupon the two separate appeals taken therein. ble enclosures contained in such correspondit is now oadered, adjudged and decreed that ence, restoring to the said Chase without delay the last decree made therein by the Circuit any correspondence and enclosures which upCourt for the County of Washtenaw was erro- on opening, the same shall appear to belong to neous by reason of the pendency of an appeal said Chase and not to said Complainant. And in this Court from the iormer decree whereby it is further ordered adjudged, and decreed that the authority of said Circuit Court to pro-: the said Chase do without delay execute to said ceed was suspended until the further order Beal an irrevocable power of attorney to reof this Court; and the said last decree is there- 1 ceive such correspondence from the Postoffice. fore reversed and vacated but without costs to and to receipt for and endorse any remittaneither party. ces, drafts. money orders or other valuable enAnd it is further ordered, adjudged and de- closures which may be contained in or accomcreed that the decree of the said Circuit Court i pany the same, and that this decree shall stand first made and appealed from, to wit. the de- operative as such authority itl all respects cree of June 1st, 1874 be and the same is in all until such power is executed and delivered to things affirmed except as to those matters said Beal. And it is further ordered adjuged which were therein reserved for further decis- and decreed that said Complainant recover of ion, and as to those matters it is ordered and said Defendants his costs in this Court of said adjudged that no further proceedings be had first appeal to be taxed and that he have exein equity and that the question of damages be cution therefor, and that this cause be remandleft to such action or actions as the Complain- ed to the Circuit Court for the County of Washant may see fit to bring at law; and as to the! tenaw for any further proceedings under this correspondence mentioned in the pleadings in! decree.

Page  15 AN EDITORIAL. The following Editorial appeared in the Peninsular Courier of April 30,]1875: In this issue of our paper will be tion of that contract, attempting to rob found the opinion in brief of the Su- us of that which he had sold to us, and preme Court of this State, in the above for which he had our money. WVe saw named cause. The struggle is now him doing that which ought to have at last ended, and our friends can re- placed him and his coadjutors in the joice with us, while our enemies and confines of a penitentiary. WVe saw opponents manst weep. The conflict has them doing that which, if we had not been one of unusual length and inter- had amnple means and sonie small degree est. It was not only of vital interest to of "pluck," would have caused our utter us, but we believe it has been of inter- ruin. We marveled at their dishonesty est and will be of value to every citizen and fraud, and asked, Is there no reof this State. We are now willing to dress? And from the lips of the masses confess, that when we fired the first there came the one answer, "N2o. The gun in this legal warfare, we did it with contract you made with Dr. Chase is some misgiving and doubt as to how worthless. He and his conspirators far the canons of the law would sup- have consulted the brightest legal port us. Yet from the first, we were minds in the country, and they all say: sustained with the consciousness that Mr. Beal, you have no remedy. The in our position we were right, and that law of many centuries is against you. justice and equity threw at least a kind- It ought not to be so, but it is so." ly cloak around us. It has been this "Notwithstanding all these adverse principle of justice and right that has winds," we were not entirely discourfinally triumphed over the obsolete'aged. The thought would come upon technicalities of the law which origi- us, that possibly some of these wise and nated in the dark ages, at a time when I infallible men of the law might be misthe king owned the subject, and indi- i taken in their construction of it, and vidual rights were considered to be of that we ought to make the fight. And but little consequence. we commenced with a will and a deterOur opponents will doubtless say that mination to see whether the law under it illustrates simply the uncertainties of which we live was only a bundle of abthe law. Surely in this they are much surdity and inconsistencies. The result mistaken. If ever in the history of the shows that those wise men of law were jurisprudence of this State, there has simplly wise in their own conceit. Their been a case which clearly established exposition of the law was only a warpthe certainty and inflexible justice of ing and torture of its principles. the law, it is seen in the case just de- When the first victory came, what cided. groans and lamentations n What chariWe knew that in good faith we had ges and accusations! VWhat invective entered into an important contract with and billingsgate were launched against Dr. Chase, and had staked a handsome thle innocent and conscientious head of fortune upon that contract. We knew Judge Crane! How freely, how openly, that, at the time, Dr. Chase made that how dastardly, our opponents charged contract in good faith. Ere long, we Judge Crane with bribery and corrupsaw him and five others in open Nviola- tion!

Page  16 16 \AN EDITORIAL. Let the tongues of these miserable this county, when his revilers and calmen, whose mouths were filled with umniators will be remembered only the "purchase and sale of Judges," with scorn and ridicule. now be silent. They to-day stand, in It has been a long and expensive litithe eyes of the people of this county gation. Those who have battled for us and district, rebuked for their calumny in this contest, have done their duty and villifications. The Supreme Court, well. WVe have settled for you, my composed of as pure men as ever sat on friends, one and all, an important printhe woolsack, affirm and endorse Judge ciple of the law, which will be of daily Crane in every respect, so far as the value to you. The law of this country mnerits of this cause are concerned. will be no longer mooted on the subject Will the distinguished (alas! extin- of contracts in restraint of trade. The g.uished) astronomer, and his confreres happy days of those who have been in this fight, enter our public streets pleased to make and break these conaud now openly charge that we have tracts at their pleasure, are ended. To bought and corrupted the Supreme my opponents and their counsel, whose Court? What now will be their war I smiles of derision have so often lighted cry? the darkness of their reverses, and We candidly believe that we speak whose ripples of laughter are now the sentiments of an unanimous and changed to unavailing wailings, and to outraged public, when we assert, that whose rescue we cannot now come, we so far as honesty of purpose, of purity make to you our adieus, until we meet of intention, of rigid adherence to right, again to settle some other matters, with truth and justice in the discharge of this recommendation: that you study his judicial duties, are concerned, the carefully the old and honored maxim, name of Judge Crane will be fresh and " Honesty is the best Policy." green in the memory of the people of