The only limits imposed by the law on the owner of property restricting his power to exact contracts from a subsequent purchaser to refrain from using the property in a certain way are those imposed by public policy, and though public policy forbids unreasonable restraint of trade, and therefore forbids a system of contracts attempting to control prices on resale,84 there seems no reason why it should prohibit contracts which reasonably protect a business of either buyer or seller without tending to affect the public injuriously by monopoly or enhancement of prices. How far equity will enforce the obligation of the contract against a third person who acquires the property with knowledge of the contract—that is, when a contract concerning the use of property will create an equitable easement is another question, elsewhere considered.85 A lease of patented articles by the owner of the patent has been distinguished in a recent case from a sale of such articles-that is, the lessor may impose restrictions which the law might not permit if the articles were not patented. The "tying clauses" in the leases under consideration in that case provided, even though one machine only was leased, in garding adjoining property retained 85 See supra, §§ 491–493. 86 In United States v. United Shoe Machinery Co., 247 U. S. 32, 38 Sup. Ct. 473, 482, 62 L. Ed. 968, the court said: "There is, however, a limitation upon [the owner of a patent]; he cannot grant the title and retain the incidents of it. Straus v. Victor Talking Machine Co., 243 U. S. 490, 61 L. Ed. 866, L. R. A. 1917 E. 1196, 37 Sup. Ct. 412, Ann. Cas. 1918 A. 955; Bauer v. O'Donnell, 229 U. S. 1, 57 L. Ed. 1041, 50 ‘L. R. A. (N. S.) 1185 33 Sup. Ct. Rep. 616, Ann. Cas. 1915, A. 150; Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 510, 61 L. Ed. 871, 876, L. R. A. 1917, E. 1187, 37 Sup. Ct. 416, Ann. Cas. 1918 A. 959. These cases have received review and application in Boston Store v. American Graphophone Co., decided March 4, 1918 (246 U. S. 8, 38 Sup. Ct. Rep. 257, 62 L. Ed. 551). The principle of them was expressed to be that where an article has been sold it passes beyond the monopoly given by the patent, and conditions cannot be imposed upon it. Leases are not of this character; they do not convey the title. It is not contended, nor could it be, that in this case they are a disguise for something else, artifices to convey the machinery and yet keep it subject to the patent right and its exercise. It, therefore, follows that conditions may be imposed by them." the most stringent manner for exclusive use of the lessor's machinery for a period of seventeen years in all of the processes of manufacture by the lessee. It may be urged that however lawful the lessor's monopoly in the property leased, his right to impose conditions or covenants in return for its use cannot include the privilege of thereby securing an unlawful monopoly in regard to other articles. Where the effect of the covenant is for a short time and narrowly limited in space and will not produce a monopoly, its provisions for exclusive dealing are not objectionable. Thus a covenant by a lessee to sell no beer, except that of a particular brewer, has also been upheld.87 § 1643. Promises ancillary to contracts of employment. Courts are less disposed to sustain an agreement which forms part of a contract of employment to refrain from subsequently engaging in competitive occupation than where a similar agreement is attached to a contract of sale.88 There is likely Ferris v. American Brewing Co., 155 Ind. 539, 58 N. E. 701, 52 L. R. A. 305; Rose v. Gordon, 158 Wis. 414, 149 N. W. 158. See also Catt v. Tourle, L. R. 4 Ch. 654; Clay v. Powell, 85 Ala. 538, 5 So. 330, 7 Am. St. Rep. 70; Sutton v. Head, 86 Ky. 156, 5 S. W. 410, 9 Am. St. Rep. 274; Herpolsheimer v. Funke, 1 Neb. (Unof.) 304, 95 N. W. 687. Cf. Crawford v. Wick, 18 Ohio St. 190, 98 Am. Dec. 103; Fuqua v. Pabst Brewing Co., 90 Tex. 298, 38 S. W. 29, 750, 35 L. R. A. 241. 88 Herbert Morris, Ltd., v. Saxelby, [1916] 1 A. C. 688; Allen Mfg. Co. v. Murphy, 23 Ont. L. R. 467. See also Ward v. Byrne, 5 M. & W. 548; Leng v. Andrews, [1909] 1 Ch. 763, 773; Keeler v. Taylor, 53 Pa. 467, 91 Am. Dec. 221; Caroll v. Giles, 30 S. C. 412, 9 S. E. 422, 4 L. R. A. 154; George Weston, Ltd., v. Baird, 31 Dom. L. R. 730; Mizon v. Pohoretzky, 38 Dom. L. R. 214, 215. As to the right of the employee, apart from restrictive promise, to compete with his former employer, see supra, § 1025, ad fin. In Herbert Morris Ltd. v. Saxelby, [1916] 1 App. Cas. 688 (affirming 11915] 2 Ch. 57), the House of Lords, held that in determining whether a covenant in restraint of trade was enforceable, a covenant exacted by the purchaser from the vendor on a sale of the good will of a business stood on a different footing from a covenant exacted by an employer against his employee; and apparently in the latter case a covenant against competition per se (that is where no violation of the employer's business secrets is involved), will not be enforced. The plaintiff company were the leading manufacturers of hoisting machinery in the United Kingdom, and the defendant had been in the company's employment as draughtsman and otherwise from the time he left school. After several years' service the defendant was engaged by the company as engineer for two years certain and thereafter, subject to four months' notice on either side, upon the terms of an agreement which contained a covenant by the defendant with the company that he would not during a to be greater hardship to the promisor and therefore injury to the public, in the former case, as for instance where an employee, expert in a narrow and technical specialty, engages not to practice his specialty. The distinction, however, seems unadvisable as a positive rule of law. If it is rightful to protect a business when it is purchased it should be lawful to protect an established business from injury by an employee,89 unless circumstances of great hardship exist. The ultimate question should be the same in both cases,-what is necessary for the protection of the promisee's rights and is not injurious to the public.90 period of seven years from his ceasing to be employed by the company, either in the United Kingdom of Great Britain or Ireland, carry on either as principal, agent, servant, or otherwise, alone or jointly or in connection with any other person, firm, or company, or be concerned or assist, directly or indirectly, whether for reward or otherwise, in the sale or manufacture of pulley blocks, hand overhead runways, electric overhead runways, or hand overhead travelling cranes. It was held that in any event the covenant was wider than was required for the protection of the plaintiff company and was not enforceable. 89 This argument was upheld in Eureka Laundry Co. v. Long, 146 Wis. 205, 131 N. W. 412, 35 L. R. A. (N. S.) 119. 90 In the following cases agreements of employees to refrain from subsequent competition were sustained: Dendy v. Henderson, 11 Exch. 194 (solicitor's clerk agreed not to practice as a solicitor for 21 years after end of employment within 21 miles); Gravely v. Barnard, L. R. 18 Eq. 518 (surgeon's assistant agreed not to practice as a surgeon at the place of employment); Sainter v. Ferguson, 7 C. B. 716 (like the preceding); Rousillon v. Rousillon, 14 Ch. Div. 351 (traveller for the sale of wine agreed not to engage in cham pagne trade for ten years after end of employment); Parsons v. Cotterill, 56 L. T. (N. S.) 839 (employee of wine merchant agreed not to enter competing occupation within fifty years); Rogers v. Maddocks, [1892] 3 Ch. 346 (brewer's employee agreed not to be concerned for two years in sale of malt liquor within a hundred miles); Underwood v. Barker, [1899] 1 Ch. 300 (employee of wholesale hay and straw dealers agreed that for twelve months after the end of his employment, he would not compete in Great Britain, or in certain specified foreign countries where the employer did business); May v. O'Neill, 44 L. J. Ch. (N. S.) 660 (a solicitor's clerk agreed not to act in that profession, after the end of his employment, within two miles); Lyddon v. Thomas, 17 T. L. Rep. 450 (a stockholder's clerk agreed not to enter competing business within fifty miles for twenty years after the end of employment); Edmundson v. Render, 90 L. T. (N. S.) 814 (a solicitor's clerk agreed not to practice that profession within a radius of fifteen miles); Carter v. Alling, 43 Fed. 208 (travelling salesman of manufacturers agreed not to accept employment for a competitor for three years after the end of employment); Harrison v. Glucose Sugar Refining Co., 116 Fed. 304, 53 C. C. A. 484, 58 L. R. A. 915 (travelling sales Where an employee will acquire by virtue of his employment trade secrets, the law permits greater restriction to be imposed by contract on the employee than in other contracts of employ man for manufacturer agreed not to accept employment from a competitor within 1500 miles of Chicago for three years); S. Jarvis Adams Co. v. Knapp, 121 Fed. 34, 58 C. C. A. 1; Knapp v. S. Jarvis Adams Co., 135 Fed. 1008, 70 C. C. A. 536 (employee of a manufacturing company on leaving agreed for consideration not to enter into competing employment for ten years); Cropper v. Davis, 243 Fed. 310, 156 C. C. A. 90 (stated infra, § 1660, n. 40); Freudenthal v. Espey, 45 Colo. 488, 102 Pac. 280, 26 L. R. A. (N. S.) 961. (Physician employed by another agreed not to practice in city of Trinidad for five years after end of employment); Hoops Tea Co. v. Dorsey, 99 Ill. App. 181 (solicitor for tea company agreed not to compete in the city for two years after the end of his employment); American Ice Co. v. Lynch, 74 N. J. Eq. 298, 70 Atl. 138 (solicitor for ice, company agreed not to compete on the same route or within five squares for a year after the end of his employment); Hackett v. Reynolds Co., 30 N. Y. Misc. 733, 62 N. Y. S. 1076 (solicitor for groceries agreed not to compete within ten miles of the city for six months after the end of his employment); Magnolia Metal Co. v. Price, 65 N. Y. App. Div. 276, 72 N. Y. S. 792 (travelling salesman for manufacturer agreed not to enter competing occupation for five years after the end of employment); Stover v. Gamewell Fire-Alarm Telegraph Co., 164 N. Y. App. Div. 155, 149 N. Y. S. 650 (an agreement by a corporation to pay its president a stipulated sum for life upon the severing of his connection, in consideration of his refraining to enter into competition); Wilkinson v. Ebbets, 103 N. Y. Misc. 324, 170 N. Y. S. 1041 (employee of a paper jobber who had bought the good will of the former, agreed not to engage in similar business in New York and five other States for three years from termination of employment); Srolowitz v. Roseman (Pa.), 107 Atl. 322 (meat dealer's employee agreed not to enter into similar business or accept employment in such business in Philadelphia for year after the end of his employment); Tillinghast v. Boothby, 20 R. I. 59, 37 Atl. 344 (a dentist's assistant agreed not to engage in dentistry within the county after the end of his employment); Turner v. Abbott, 116 Tenn. 718, 94 S. W. 64, 6 L. R. A. (N. S.) 892 (a dentist's assistant agreed not to engage in dentistry within the town or its vicinity after the end of his employment); Patterson v. Crab (Tex. Civ. App.), 51 S. W. 870 (a teacher agreed not to accept employment as a teacher in the same city after the end of his employment). Cf. Mandeville v. Harman, 42 N. J. Eq. 185, 7 Atl. 37, where an agreement by a physician unlimited in time, though limited to a single town was held invalid. In Michigan any agreement or contract not to engage in any trade, profession or business whether reasonable or unreasonable, partial or general, limited or unlimited, is declared by statute illegal and void. See Grand Union Tea Co. v. Lewitsky, 153 Mich. 244, 116 N. W. 1090. So far as concerns contracts of employees, such also seems to be the effect of Calif. Civ. Code, §§ 1673–1675, and similar provisions in Oklahoma. Every contract restraining one from exercising a lawful trade, profession or business, is made void with two exceptions. A partner on dissolution of partnership may agree not to carry on a similar business in the same town, and on ment; 91 but the restraint must not be unreasonable even in such a case.92 An agreement by an employee that all patents for inventions relating to a particular art to which the employment was related which he should secure should belong to his employer, has been upheld and specifically enforced in regard to a patent applied for after the termination of the employment.93 § 1644. Partners may make restrictive promises. The contract of a partner not to compete with the partnership either directly or indirectly is not opposed to public policy; 94 but such an agreement must be ancillary to the contract sales of good will, the seller may agree not to carry on a similar business within a county or city for the period during which the promisee, or one who derives title from him continues the business for the benefit of which the restriction is imposed. See City Carpet, etc., Works v. Jones, 102 Cal. 506, 36 Pac. 841; Ragsdale v. Nagle, 106 Cal. 332, 39 Pac. 628; Getz v. Federal Salt Co., 147 Cal. 115, 81 Pac. 416, 109 Am. St. Rep. 114; Akers v. Rappe, 30 Cal. App. 290, 158 Pac. 129; Hulen v. Earel, 13 Okla. 246, 73 Pac. 927; Public Opinion Pub. Co. v. Ransom, 34 S. Dak. 381, 148 N. W. 838, Ann. Cas. 1917 A. 1010. In the following cases restrictive promises of employees were held invalid. Dowden v. Pook, [1904] 1 K. B. 45; Leng v. Andrews, [1909] 1 Ch. 763; Mason v. Provident, etc., Co., [1913] A. C. 724; Herbert Morris, Ltd., v. Saxelby, [1916] 1 A. C. 688; Tarr v. Stearman, 264 Ill. 110, 105 N. E. 957; Mandeville v. Harman, 42 N. J. Eq. 185, 7 Atl. 37; Taylor Iron & Steel Co. v. Nichols, 73 N. J. Eq. 684, 69 Atl. 186, 24 L. R. A. (N. S.) 933, 133 Am. St. Rep. 753; Oppenheimer v. Hirsch, 5 N. Y. App. Div. 232, 38 N. Y. S. 311; Tolman v. Mulcahy, 119 N. Y. App. Div. 42, 103 N. Y. S. 936; Keeler v. Taylor, 53 Pa. 467, 91 Am. Dec. 221; Carroll v. Giles, 30 S. C. 412, 9 S. E. 422, 4 L. R. A. 154. 91 Harrison v. Glucose Sugar Ref. Co., 116 Fed. 304, 53 C. C. A. 484, 58 L. R. A. 915; S. Jarvis Adams Co. v. Knapp, 121 Fed. 34, 58 C. C. A. 1; Knapp v. S. Jarvis Adams Co., 135 Fed. 1008, 70 C. C. A. 536; O. & W. Thum Co. v. Tloczynski, 114 Mich. 149, 72 N. W. 140, 38 L. R. A. 200, 68 Am. St. Rep. 469; Sanitas Nut Food Co. v. Cemer, 134 Mich. 370, 96 N. W. 454; Eastman Co. v. Reichenbach, 47 N. Y. S. 435, 20 N. Y. S. 110; National Gum & Mica Co. v. Braendly, 27 N. Y. App. Div. 219, 51 N. Y. S. 93; G. F. Harvey Co. v. National Drug Co., 75 N. Y. App. Div. 103, 77 N. Y. S. 674; Fralich v. Despar, 165 Pa. 24, 30 Atl. 521. 92 Badische &c. Fabrik v. Schott, [1892] 3 Ch. 447; Taylor Iron & Steel Co. v. Nichols, 73 N. J. Eq. 684, 69 Atl. 186, 24 L. R. A. (N. S.) 933, 133 Am. St. 753. 93 Wege v. Safe Cabinet Co., 249 Fed. 696, 161 C. C. A. 606. As the court points out (p. 704) if the promise were limited to patents applied for during the term of employment, "the inventor might through knowledge obtained in his employment evade the contract later and render it valueless." 94 Tallis v. Tallis, 1 E. & B. 391; Dayer-Smith v. Hadsley, 108 L. T. (N. |