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by the requirement that the seller must have received a substantial consideration for the sale of his business. 11 Recently, however, this requirement has been held to be satisfied if some consideration of value in addition to, or including, the consideration necessary to make a contract is given. The courts will not go into the adequacy of the consideration in each particular case; but will rely upon the seller obtaining, in general, the fair equivalent for the sale of his business.12 Today, however, the arise from them, first, to the party,

12—Hitchcock v. Coker, 6 A. & E., by the loss of his livelihood, and the 438 (1837) [26] (“But if by adesubsistence of his family; secondly, quacy of consideration more is into the public, by depriving it of a tended, and that the court must useful member.”'); Gamewell Fire weigh whether the consideration is Alarm Co. v. Crane, 160 Mass. 50 equal in value to that which the (1893) [55] (““To exclude a per party gives up or loses by the reson from manufacturing or selling straint under which he has placed anywhere in the United States or himself, we feel ourselves bound to in the world machinery designed for differ from that doctrine. A duty certain purposes, in which that per would thereby be imposed upon the son has acquired great skill, may

court, in

every particular case, operate to impair his means of which it has no means whatever to earning living.''); Diamond execute. It is impossible for the Match Co. v. Roeber, 106 N. Y. 473 court, looking at the record, to say (1887) [59]; Leslie v. Lorillard, whether, in any particular case, the 110 N. Y. 519 (1888) [69]; Oak party restrained has made an imdale Manufacturing Co. v. Garst, 18 provident bargain or not.

The reR. I. 484 (1894) [80]; National ceiving instruction in a particular Benefit Co. v. Union Hospital Co., trade might be of much greater 45 Minn. 272 (1891) [96]; United value to a man in one condition of States Chemical Co. V. Provident

life than in another; and the same Chemical Co., 64 Fed. 946 (1894)

may be observed as to other con[102].

siderations. It is enough, as it ap11–Mitchel V. Reynolds, 1 P.

pears to us, that there actually is

a consideration for the bargain; and Wms. 181 (1711) [4] (“Particular

that such consideration is a legal restraints are either, first, without

consideration, and of some value. consideration, all which are void by

Such appears to be the case in the what sort of contract soever created.

present instance, where the defendOr secondly, particular re

ant is retained and employed at straints with consideration.

an annual salary.''); Lawrence v. Where a contract for restraint of

Kidder, 10 Barb. (N. Y.) 641, 649 trade appears to be made upon a

(1851) (“In many of the early good and adequate consideration, so cases the language of the courts as to make it a proper and useful would seem to imply that the adecontract, it is good.")

quacy or extent of the consideration






fear of the seller becoming a charge upon the community has practically disappeared. If the business sold is small, the seller had something to do with the that complainant paid no more than validity of the contract. They say the cost of the articles at Grand that a mere pecuniary consideration Haven make difference. is not sufficient; that there must be Where a consideration recognized by something, although it does not ap law as being valuable is paid, the pear very clearly what, added to law very properly allows the parties this to support the contract. This to judge for themselves of the idea, however, of the necessity of sufficiency in value of such conany greater or other consideration sideration for their contracts. We for a contract of this description, cannot, therefore, enter into the than any other, was obviously un question whether the consideration founded, and has been exploded by was commensurate in value with the the recent

[Hitchcock restraint imposed. See Hitchcock Coker, supra, Green v. Price, 13 M. v. Coker, 6 A. & E. 438 (1837); & W. 695 (1845)]''); Duffy v. Pilkington v. Scott, 15 M. & W. Shockey, 11 Ind. 70, 73 (1858) (As 657 (1846); Hartley v. Cummings, to the question of the adequacy of 5 C. B. 247 (1847). And there is the consideration, we are inclined no reason for holding that, without to view this as we would any other the restraint contracted for, comcontract made by parties capable of plainant would have been willing contracting. They should, in the to purchase for the price he gave, absence of fraud, be presumed to

we say that the vendors have determined that point for them could have sold at that price withselves.

This presumption out such stipulation. In fact, we is peculiarly proper in this case, must infer that, in their opinion for the reason that we are left in they could not readily have done so doubt as to how much the considera without it, or they would not have tion to be paid by the defendant given it. It is clear, at all events,

In addition to the 300 dollars, that they thought the sale with the he was to relieve the planitiffs from stipulation an advantageous one or their contracts with agents—to what they would not have made it. The amount we are not informed-he contract must, therefore, be held was to take the marble, carved or fair, reasonable and valid, unless not, remaining after the completion too general and unlimited as to of the outstanding contracts of place, as insisted under the second plaintiffs. The value of the marble objection.') See also Holbrook v. thus disposed of is not given. He Waters, 9 How. Pr. (N. Y.) 335 was also to buy of plaintiffs marble (1854); Pierce v. Fuller, 8 Mass. at fixed prices; but whether those 222 (1811) (a consideration of one prices were advantageous to the dollar deerned sufficient to support plaintiffs, or defendant, we are not the restrictive covenant.) appraised by the pleadings or evi. In Chapin v. Brown, 83 Ia. 156 dence.”'); Hubbard v. Miller, 27 (1891) [138] it would seem that Mich. 15, 21 (1873) ("The fact the court regarded the evidence con.

nor can


may take the consideration and start elsewhere. If the business is so large that the restriction probably covers a wide area, the consideration paid to the seller will usually be such as to keep him from becoming a public charge.13 Where the restric

cerning the particular transaction particular field.”'); Herreshoff v. as failing to show any adequate con Boutineau, 17 R. I. 3, 6 (1890) sideration. This can hardly be sup (In the days of the early Engported, because the recitals of the lish cases, one who could not work contract itself showed plainly that at his trade could hardly work at the seller was parting with a losing all. The avenues to occupation were branch of his business without hav not as open nor as numerous as ing it fall into the hands of those now, and one rarely got out of the who competed with him in his other path he started in. Contracting not lines of business. The considera to follow one's trade was about tion was legally sufficient to make a the same as contracting to be idle, contract, and it was a business or, to go abroad for employment. transaction on its face in which a But this is not so now. It is an consideration of value was given every-day occurrence to see men for the restriction.

busy and prosperous in other pur13—Nordenfelt V. Maxim Nor suits than those to which they were denfelt Guns & Ammunition Co., trained in youth; as well as to see [1894] A. C. 535 [33] (The fact them change places and occupations that the seller had become a pauper without depriving themselves of the in the particular case made no dif means of livelihood, or the state of ference.); Anchor Electric Co. v. the benefit of their industry. It Hawkes, 171 Mass. 101, 105 (1898) would, therefore, be absurd, in the (The changes in the methods of light of this common experience, doing business and the increased now to say that a man shuts himfreedom of communication which self up to idleness or to expatriahave come in recent years have very tion, and thus injures the public, materially modified the view to be when he agrees, for a sufficient contaken of particular contracts in sideration, not to follow some one reference to trade.

The compara

calling within the limits of a partive ease with which one engaged ticular state. There is no expatriain business can turn his energies to tion in moving from one state to a new occupation, if he contracts to another; and from such removals give up his old one, makes the hard a state would be likely to gain as ship of such a contract much less many as it would lose.”'); Kellogg for the individual than formerly, v. Larkin, 3 Pinn. (Wis.) 123 (1851) and the commercial opportunities [149] (““The opportunities for emwhich open the markets of the ployment are so abundant, and the world to the merchants of every

demand for labor on all sides is so country leave little danger to the pressing and urgent and the supply community from an agreement of so limited, that I much question, an individual to cease to work in a were we to consider the subject as

tion is given by a corporation the fear that the promisor will become a public charge has no place.14

$ 8. Another ground formerly expressed for holding invalid these restrictive covenants was that they might leave a given community unserved by anyone capable of carrying on a given business.15 This may have been an important consideration in the case of a business confined to a small territory at a time when others could not mobilize readily at a given point. It is out of place today, when the ease and freedom of transportation are such that if one man goes out of business in a given locality, there is little need to fear that the public will suffer by reason of the failure of anyone to serve it.16 Besides, when a business is sold

res integra, if we should feel author viz., the mischief which may arise ized to hold that a man had en (1) to the party by the loss by the dangered his own livelihood and the obligor of his livelihood and the subsubsistence of his family, by an sistence of his family, and (2) to agreement which merely excluded the public by depriving it of a usehim from exercising the trade of a ful member, and by enabling corpblacksmith or a shoemaker, leaving orations to gain control of the trade all the other departments of me of the kingdom. It is quite obvious chanical, agricultural and commer that some of these reasons are much cial industry open to him.'')

less forcible now than when Mitchel 14–United States Chemical Co. v. Reynolds was decided. Steam and v. Provident Chemical Co., 64 Fed. electricity have for the purposes of 946 (1894) [102] (“Among the trade and commerce almost annihil. potent reasons first assigned against ated distance, and the whole world such contracts was that the person is now a mart for the distribution restrained by thus surrendering his of the products of industry. The chosen occupation-one for which he great diffusion of wealth, and the has been especially prepared restless activity of mankind striving might become a public charge, and to better their condition, have the public be injured in being de greatly enlarged the field of human prived of his personal skill in the enterprise, and created a vast numavocation to which he had been ber of new industries, which give brought up. Such reasons cannot be scope to ingenuity and employment applied to artificial persons without for capital and labor."'); National absurdity.'')

Benefit Co. v. Union Hospital Co., 15—Mitchel V. Reynolds, 1 P. 45 Minn 272 (1891) [96] (“MoreWms. 181 (1711) [7] ante $ 7 over, as cheaper and more rapid note 10.

facilities for travel and transporta16—Diamond Match Co. v. Roe tion gradually changed the manner ber, 106 N. Y. 473 (1887) [59] of doing business, so as to enable (“He [Parker, C. J., in Mitchel v. parties to conduct it over a vastly Reynolds] refers to other reasons, greater territory than formerly, the

by one to another the public is substantially as well off as it was before.

8 9. The tendency to monopoly by the elimination of competition is, in this class of cases, the slightest. No existing competition has been eliminated. One man has taken another's place. It is doubtful and entirely speculative whether the buyer would have competed if he could not have purchased. About all that can be said is that there is less probability that the purchaser would have competed if he could not have bought, than that the seller would compete if he had not entered into a restrictive covenant.17

§ 10. (2) If the restriction is not broader than the business sold but extends up to, or beyond, the limits of any state where it is operative, it should still be held valid. The rational test is the extent of the business sold and not the boundaries of some political subdivision of the country. This is the view of the more recent cases, where the restriction has been held valid even when the sale was to a competitor.18 The argument that such restrictions tend to force the promisor to leave the state is answered by the fact that this does not cause him to leave his country, and that what is lost by one man leaving the state is gained by others coming into the state.19 The older decisions, for a time at least, appear to have made an arbitrary rule that a restriction which operated throughout a state was void even though not broader than the business sold.20


courts were necessarily compelled to the covenant to the third, and he readjust the test or standard of the may release it to the covenantor: reasonableness of restrictions as to Gompers v. Rochester, 56 Pa. St. place.')

194 (1867). 17-A restrictive covenant may 18-Nordenfelt Maxim Norbe found to be expressed by inter denfelt Guns Co. [1894] A. C. 535 pretation from the sale of a busi [33]; Diamond Match Co. v. Roeness and good will, in which case ber, 106 N. Y. 473 (1887) [55]. the covenantor cannot hold himself 19—Herreshoff v. Boutineau, 17 out as carrying on his former busi R. I. 3, 6 (1890) (“There is no ness at a new address: Hall's Ap expatriation in moving from one peal, 60 Pa. St. 458 (1869).

State to another; and from such The assignment by two out of removals a State would be likely to three covenantees to the third of gain as many as it would lose.”') the business protected by the cove 20—Taylor Blanchard, 13 nant, operates as an assignment of Allen (Mass.) 370 (1866); Lufkin

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