They have that right; and she has a right to have them comply with theirs. She has a right to live in Pittsburg or in Florida, just as she sees proper. That is nobody's business but hers, and when she goes to Atlanta, if she did go there, she has a right to go back, if this ticket allowed it, on the same day she got there. That is another matter to be determined by herself." We think the effect of these charges was to deprive the defendant of the benefit of its contention that Barlow, in taking the train, had no bona fide purpose of returning to Pittsburg, but that his object simply was to have himself and wife ejected, and thus lay the foundation for bringing the present actions. Of course, it was the right of Barlow and his wife to reside where they pleased, or to go to any place they chose to visit; but, taking into consideration all the facts and circumstances of these cases, it was certainly the right of the defendant to insist upon its above-stated contention. We are not ourselves intending to express any opinion as to the merits of this particular matter of controversy, but we think the determination of the same should be left to the jury under instructions giving to each side a fair opportunity to have the evidence offered in favor of that side weighed and passed upon without prejudice.

5. In the motion filed by the company in Mrs. Barlow's case, complaint is made that the court, over the defendant's objection, allowed her counsel to comment upon the alleged insult which the validating agent had given to her husband. Counsel was referring to testimony on the part of Barlow in which he swore that the validating agent had used to him the offensive language quoted in the preliminary statement preceding this discussion. We are quite sure the court ought to have required counsel to desist from making such an argument. It could have no possible legal relevancy in the trial of Mrs. Barlow's case, and the only effect it could have had was to inflame and prejudice the jury, and tend to induce them to find in her favor an amount larger than they would otherwise have allowed. After a thorough and careful examination of the records in both of these cases, our conclusion is that the ends of justice require a new trial in each. Judgment in each case reversed. All the justices concurring, except COBB, J., absent for providential cause.

CAESAR v. STATE.

(Supreme Court of Georgia. March 22, 1898.) CRIMINAL LAW-REVIEW.

There was no error of law at the trial. The evidence was sufficient to authorize the verdict, and the court did not err in overruling the motion for a new trial.

(Syllabus by the Court.)

Error from superior court, Dougherty County; W. N. Spence, Judge.

Anders Caesar, being convicted of an of

fense, moved for a new trial, which was denied, and he brings error. Affirmed.

Walters & Wallace, for plaintiff in error. W. E. Wooten, Sol. Gen., and Harrison & Bryan, for the State.

PER CURIAM. Judgment affirmed.

RAKESTRAW v. LANIER. (Supreme Court of Georgia. April 13, 1898.) CONTRACT IN RESTRAINT OF TRADE-VALIDITY — MEDICAL PARTNERSHIP-AGREEMENT TO REFRAIN FROM PRACTICE.

1. A contract in restraint of trade, unlimited as to time, and the enforcement of which literally as made would, in certain contingencies likely to arise, and which must necessarily have been in contemplation of the parties, result in needlessly oppressing one of them, without affording any corresponding benefit or protection to the other, is unreasonable, and should not be enforced.

2. Of this nature is a contract for the formation of a medical partnership to continue for 12 months, but which might be dissolved by either of its two members on 30 days' notice to the other, whereby one of them stipulates that, in consideration of the advantages and benefits that will flow to him by reason of the formation of such partnership, he "agrees that, in the event said firm shall at any time hereafter be dissolved, he will not locate or engage in the practice of medicine, surgery, or. obstetrics" at a named town, or at any place within 15 miles radius of a specified drug store therein, unless he shall first have obtained the written consent of the cther party to the contract.

3. A distinction exists between that class of contracts binding one to desist from the prac tice of a learned profession, and those which bind one who has sold out a mercantile or other kind of business, and the good will therewith connected, not to again engage in that business. In the former class there should be a reasonable limit as to time, so as to prevent the contract from operating with unnecessary harshness against the person who is to abstain from practicing his profession at a time when his so doing could in no way benefit the other contracting party. In the latter class such limit is not essential to the validity of the contract, but the restraint may be indefinite. In the case of Swanson v. Kirby, 26 S. E. 71, 98 Ga. 586, there was a purchase of property and of a business connected with the same, and necessarily the good will pertaining to that business was involved. That case therefore belongs to the latter of the above-mentioned classes, and is distinguishable from the present case, which belongs to the former.

(Syllabus by the Court.)

Error from superior court, Screven county; R. L. Gamble, Judge.

Action by A. B. Lanier against Chauncey Kakestraw. Decree for plaintiff. Defendant brings error. Reversed.

The following is the official report: On August 10, 1895, Lanier and Rakestraw, physicians residing in the town of Oliver, formed a partnership for the practice of medicine, surgery, and obstetrics. The articles of co-partnership contained, among other stipulations, the following: "In consideration of the advantages and benefits that will flow to said Rakestraw by reason of the formation of said firm and

partnership business, he hereby agrees that in the event said firm shall at any time hereafter be dissolved, that he will not locate or engage in the practice of medicine, surgery, or obstetrics at said town of Oliver, or at any place within fifteen miles radius from the drug store of said Lanier, unless he shall first have obtained the written consent of said Lanier. And, in the event the said Rakestraw shall violate the terms of this article, the said Lanier shall be entitled to sue and recover, as his damages, the sum of one thousand dollars annually from said Rakestraw so long as he shall violate the terms of this article; said sum of $1,000 being agreed now between the parties hereto as damages, and not as a penalty. This partnership shall continue for the space and term of twelve months from the date when signed by the parties hereto, unless sooner dissolved. This partnership may be dissolved by either member giving to the other, in writing, a notice of his intention to withdraw from the partnership; and, at the expiration of thirty days from the service of such notice by either member on the other, said firm shall be dissolved." On June 3, 1896, Lanier wrote to Rakestraw as follows: "Under the provisions of our contract, a thirty-days notice is required to dissolve the same; and you are hereby notified that, on the third day of July next, you may consider the contract between us in the practice of medicine ended. This will enable you to make all collections of your one-third interest in all accounts now on our books, or what may become due within thirty days, at which time I shall expect a partner in the practice here. If you desire, you can fully withdraw from all office practice and drug-store duties from date. I shall expect to abide by the contract in the letter and in the spirit in which it was written." The partnership was accordingly dissolved. After the dissolution, Rakestraw continued to reside in the town of Oliver, and to practice medicine, surgery, and obstetrics therein, and within the radius of 15 miles referred to in the contract. On September 18, 1897, Lanier wrote to Rakestraw, at Oliver, as follows: "Under our contract, you are now due me $1,000, which you will pay at once, or discontinue practice in this place." Rakestraw refused to comply with this demand; and on October 26, 1897, Lanier brought to the superior court his petition, setting out the foregoing facts, and alleging that Rakestraw was still engaged in the practice of medicine, surgery, and obstetrics in the locality mentioned, contrary to his contract, in violation of equity and good conscience, and in fraud and damage of petitioner; that by reason of this breach of the contract, and under the express terms thereof, defendant became indebted to him in the sum of $1,000 at the expiration of the year from the date of the dissolution, and is still so indebted; that defendant is hopelessly

insolvent; that petitioner has no adequate remedy at law; and that the injury complained of is continuing in its nature, and will necessitate a suit at the expiration of each year, and by reason of the bad faith of the defendant, and the nature of petitioner's business, his age, and his circumstances, the injury is irreparable in damages. Waiving discovery, he prayed a judgment against defendant for $1,000, a perpetual injunction, and, until the final hearing, a temporary injunction, restraining the defendant from engaging in the practice of medicine, surgery, or obstetrics at the town of Oliver, or any place within a radius of fifteen miles from the drug store of petitioner, unless he shall have first obtained the written consent of petitioner. The defendant demurred and answered, and, at the hearing of the application for temporary injunction, urged that the petition set forth no ground for injunetion or other relief against him; that the stipulation in the contract upon which the petition was based is against public policy and illegal, and is not valid or enforceable against the defendant; that it is not a reasonable or proper stipulation, within the meaning of the requirements of the law, and is unjust, unfair, and against good conscience; that it is without sufficient consideration to support it, and is lacking in mutuality, and does not put the plaintiff under such obligation as would make the agreement of the defendant valid and binding; and, further, that, under the facts, the plaintiff was not entitled to the injunction or other relief. Defendant denied that he had acted in bad faith, or was inflicting any legal injury upon the plaintiff. He denied that he was hopelessly insolvent, but admitted that his assets, which consisted of personal property only, would not, if sold at public outcry, net more than enough to pay what he owed. He alleged: Before signing the agreement, plaintiff called his attention to the stipulation in question, and said that it had been put in by the lawyer as a matter of form, and that he (plaintiff) doubted its legality, and gave defendant to understand that he need not apprehend its enforcement. Before the agreement was entered into, certain residents of the town of Oliver had advertised in the newspaper that a physician was needed in the town, and plaintiff, understanding that defendant might locate in Oliver, induced him to sign the contract, with the purpose of thereby getting rid of defendant's competition. This purpose was fraudulent, and vitiated the contract, if otherwise legal. During the continuance of the partnership, and before any notice of dissolution was given, plaintiff so conducted himself with reference to the defendant as to deprive him of the possibility of gaining any advantage from the association, and made the partnership the means of injuring and damaging defendant, and of efforts to blast his good name and prospects

Plaintiff, before the notice, circulated reports which were untrue and unfounded, reflecting grossly upon the character and life of defendant, and which are set out in the answer. Plaintiff did not comply with his obligations under the contract. He declined upon different occasions to practice with defendant, declined to recognize notes addressed to the firm in the firm name, and announced that he would not notice any request for a visit that was not addressed to him personally. While the co-partnership continued, plaintiff announced that he intended to ruin defendant, and would drive him out of the country. As to these allegations the evidence at the hearing was conflicting. The court, after hearing the evidence, ordered that a temporary injunction as prayed for be granted, unless a bond with security, conditioned to pay the eventual condemnation money, should be given by the defendant within 45 days from the date of the order. Defendant excepted.

Denmark, Adams & Freeman, for plaintiff in error. Giquilliat & Stubbs and Oliver & Overstreet, for defendant in error.

LITTLE, J. Counsel for plaintiff in error, both by his argument and brief, rests his case on the proposition that the petition on which the judge below granted an injunction in default of bond sets forth no cause for relief, because the contract sought to be enforced is not a legal and binding instrument. Hence this court is called upon to determine the question whether the contract which is set out in the foregoing report is void, as contrary to public policy, or whether the same is valid, and therefore to be enforced. This question is to be settled by the rules of law governing contracts made in restraint of trade, and, in seeking to make application of such rules, we find ourselves furnished with precedents which seem to be authority for all phases of the question, and rulings distressingly in conflict. The plaintiff in error submits that the terms of the contract render it invalid, because it is harsh and unreasonable; it is against public policy; it is not a reasonable or proper contract, within the meaning or the requirements of the law; that it is without consideration to support it. If either one of these contentions is established, then, as we understand the law applicable to contracts of this character, the courts must refuse to enforce the contract relied upon, because agreements which are unlawful, without regard to the manner of execution, never in law become contracts, although frequently denominated and dealt with under the name of illegal contracts. We cannot, within reasonable limits, undertake to reconcile conflicting opinions in treating of contracts in restraint of trade, nor cite the authorities which bear upon the different constituent elements which render such contracts valid, or the want of which make them void, for the reason that the first are irreconcilable, and the latter in30 S.E.-47

harmonious. It must suffice that we shall in this case present the rules which we consider established by the most satisfactorily reasoned cases of other jurisdictions, and the adjudications of our own court.

Mr. Clark, in his work on Contracts, says, on authority, that at one time in England it was considered that a contract was contrary to public policy if it placed any restraint at all on a man's right to exercise his trade or calling, but that, gradually, exceptions were recognized, until at last the court, in a leading case (Mitchel v. Reynolds, 1 P. Wms. 181), established the rule that a contract in restraint of trade, upon consideration, which shows it was reasonable for the parties to enter into it, is good; "that whenever a consideration appears to make it a proper and useful contract, and such as cannot be set aside without injury to a fair contractor, it ought to be maintained," etc. By reference to that case, we find the conclusion of the court to be that "in all restraints of trade, where nothing more appears, the law presumes them bad; but, if the circumstances are set forth, that presumption is excluded, and the court is to judge of those circumstances, and determine accordingly, and if, upon them, it appears to be a just and honest contract, it ought to be maintained." Some question has arisen as to the proper construction of our Code, which declares that "contracts in general in restraint of trade are void" (Civ. Code, § 3668), and as to whether the proper interpretation of these words would have the effect to declare that contracts in general restraint of trade are void, or that contracts generally in restraint of trade are void. Speaking for myself, I interpret the language to mean that contracts generally in restraint of trade are void. The words of this section were not codified from any act of the general assembly, but the same language appeared in our first Code (1863), and ran without change through successive editions and revisions up to and including the Civil Code of 1896, from which I infer that, if the words were not intended to be accepted as written, subsequent codifiers, if not subsequent legislatures, would, by change or amendment, more clearly have expressed a different meaning. But I take it that the words "contracts in general in restraint of trade are void" (meaning that, generally, contracts in restraint of trade are void) were incorporated into the codification of laws in force in this state as expressing a recognized legal principle sanctioned by the highest authority. In Ross v. Sadgbeer, 21 Wend. 168, Mr. Justice Bronson says: "The law starts out with the presumption that a contract in restraint of trade is void." The same rule is stated in Pol. Cont. side page 311; is recognized in the leading case from 1 P. Wms., supra; and the principle laid down in Clark, Cont. p. 447. Besides, such a construction seems to be in harmony with the policy of the law in this state. To one class of persons

at least-corporations-contracts of this character are forbidden when they tend to lessen competition in their respective business (Const. 1877; .Civ. Code, § 5800); and various acts of the legislature seem to indicate such a policy to exist. However this may be, it is certain that contracts in unreasonable restraint of trade are contrary to public policy, and void, because they tend to injure the parties making them; diminish their means of procuring livelihoods and a competency for their families; tempt improvident persons, for the sake of present gain, to deprive themselves of the power to make future acquisitions, and expose them to imposition and oppression; tend to deprive the public of the services of men in the employments and capacities in which they may be most useful to the community as well as to themselves; discourage industry and enterprise, and diminish the products of ingenuity and skill; prevent competition, and enhance prices, and expose the public to all the evils of monopoly. Clark, Cont. p. 446. Against evils like these, wise laws protect individuals and the public by declaring all such contracts void. Alger v. Thacher, 19 Pick. (Mass.) 51. Since the early legislative history both of England and this country, statutes have been of force looking to the prevention of monopoly, and the interdiction of restraints upon the exercise of business, trades, or professions; and in no instance has a contract which imposed an unreasonable restraint upon the same, in the eye of the judiciary, been upheld; and the question of the reasonableness of the restriction is one of law for the court. 1 Whart. Cont. § 433; Bish. Cont. § 517; Benj. Sales, § 527; 2 Pom. Eq. Jur. § 934; Mallan v. May, 11 Mees. & W. 653; Wiley v. Baumgardner, 97 Ind. 66. In determining whether such restriction is reasonable, the court will look alone to the time when the contract was entered into. Rannie v. Irvine, 7 Man. & G. 969; Cook v. Johnson, 47 Conn. 175. It is, however, satisfactorily established that, as a matter of law, such a contract is to be upheld if the restraint imposed is not unreasonable, is founded on a valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public. Clark, Cont. p. 446. some jurisdictions it is held that a contract in restraint of trade which is unlimited as to space is void on its face, and will not be enforced. Id. p. 450, and authorities cited. On the other hand, it has been held that a contract restraining the exercise of a trade or business throughout the kingdom or state may be reasonable, and therefore valid. Rousillon v. Rousillon, 14 Ch. Div. 351; Beal v. Chase, 31 Mich. 490; Match Co. v. Roeber, 35 Hun, 421. In determining, however, whether such a contract is reasonable, the court will consider the nature and extent of the trade or business, the situation of the parties, and all the other circumstances; and

In

even if the presumption to which we have before referred does not exist against the validity of such contracts, so as to require persons seeking to enforce them to show that they were made upon a sufficient consideration, and that the restrictions they impose are reasonable (Angier v. Webber, 92 Am. Dec., note on page 753), yet, in law, all such contracts are void, if considered only in the abstract, and without reference to the situation or objects of the parties, or other circumstances under or with reference to which they were made; and this, though the pecuniary consideration paid may have been sufficient to support the contract in any other aspect, or any ordinary contract for a legal purpose, or even though it may be sufficient in value to compensate the restraint imposed. But if, considered with reference to the situation, business, and objects of the parties, and in the light of all the surrounding circumstances with reference to which the contract was made, the restraint contracted for appears to have been for a just and honest purpose, for the protection of the legitimate interests of the party in whose favor it is imposed, reasonable as between them, and not specially injurious to the public, the restraint will be held valid. The true test, therefore, of the validity of such a contract, is whether it is supported by a sufficient consideration, and whether the restraint is reasonable.

The plaintiff in error contends that the contract under review is without suflicient consideration to support it, and that for this reason it is void. That there must be an actual valuable consideration to support such a contract, and such consideration should be shown on the face of the declaration or complaint, although the contract be under seal, are propositions well established. Bish. Cont. § 126; Metc. Cont. p. 233; 1 Whart. Cont. § 434; Mitchel v. Reynolds, 1 P. Wms. 181; Davis v. Mason, 5 Term R. 118; Hutton v. Parker, 7 Dowl. 739; Pierce v. Fuller, 8 Mass. 223; Weller v. Hersee, 10 Hun, 431. That the consideration must thus be shown is generally said to be the only exception to the rule that a contract under seal imports a consideration which the party will not be permitted to deny. Metc. Cont. § 233. And in earlier times it was held that the consideration must be adequate. Mitchel v. Reynolds, supra; Gale v. Reed, 8 East, 80; Young v. Timmins, 1 Tyrw. 226. The courts, however, long since departed from this doctrine; and it may now be taken as settled that, if there is a legal consideration, it will not be inquired whether or not it is adequate, or, in other words, equal in value to the restraint agreed upon. See authorities cited in note to case of Angier v. Webber, 92 Am. Dec. 754. As was said by Tindal, C. J., in the case of Hitchcock v. Coker, 6 Adol. & E. 438: "It is enough that there is actually a consideration for the bargain, and that such consideration is a legal consideration, and of some value." Accordingly, in the case of

Pierce v. Fuller, 8 Mass. 223, one dollar was held to be a sufficient consideration for a covenant not to run a stagecoach between given points, in opposition to the plaintiff. The consideration upon which the defendant entered into the contract under review as expressed was the advantages and benefits that would flow to him by reason of the "formation of said firm and partnership business." This, under the authorities cited, is a sufficient legal consideration, in so far as such contracts are dependent on a consideration to be sustained. The exact value of the consideration, the court ought not, and, in the nature of things, cannot, undertake to measure. There is nothing in the record of the case which shows such gross inadequacy of consideration as to shock the conscience, and amount in itself to evidence of fraud. See Metc. Cont. p. 271.

The remaining objections urged against the validity of the contract may all be passed upon in considering the other question upon which the validity of the contract depends, namely, is the restraint which it imposes reasonable? While public policy forbids any agreement which unreasonably restrains a person from exercising his trade or business, it is equally true that public policy also requires that the freedom of persons to enter into contracts shall not be lightly interfered with. Clark, Cont. p. 447. The contract under consideration imposed a restraint unlimited as to time, but limited as to space. We are aware that it has been repeatedly held that, where the restraint is otherwise reasonable, the circumstances that it is indefinite as to time will not affect its validity (1 Whart. Cont. § 432; Metc. Cont. p. 232; Benj. Sales, § 525; Hitchcock v. Coker, 6 Adol. & E. 438; Pemberton v. Vaughan, 10 Q. B. 87; Catt v. Tourle, 4 Ch. App. 654; Cook v. Johnson, 47 Conn. 175; Bowser v. Bliss, 7 Blackf. 344); and that our court, in more than one case, which will be presently referred to, held the same doctrine. Nevertheless, if the test of the validity of the contract is, as we have shown it to be, that it must be founded on a valuable consideration, and that the restraint imposed must be reasonable, and such as is reasonably necessary to protect the interest of the party in whose favor it is imposed, and at the same time not unduly prejudice the interest of the public, it seems to us that the question of time in the restriction imposed cannot be arbitrarily said to have no effect on the validity of a contract which, being reasonable in all other respects except in point of time, is, from the circumstances, unreasonable and oppressive as to the latter. See Mandeville v. Harman (N. J. Ch.) 7 Atl. 37; Keeler v. Taylor, 53 Pa. St. 469. In the case of Hitchcock v. Coker, supra, Lord Denman, construing a contract which imposed a restraint on one who, having entered the service of the plaintiff (who was a druggist), agreed that he would not at any time after leaving such service engage in

the business of a druggist in that town, said: "It is not limited to such time as the plaintiff should carry on business in Taunton, nor to any given number of years, nor even to the life of the plaintiff; but it attaches to the defendant as long as he lives, although the plaintiff may have left Taunton, or parted with his business, or be dead;" and he accordingly held the restraint to be unreasonable and oppressive. That case was reversed on writ of error, but the point of reversal was that a restriction so extensive in point of time was necessary for the protection of the promisee in the enjoyment of the good will of his trade; and, as we understand the principle ruled in that case, a restriction so extensive is reasonable, and not oppressive, when it prevents the destruction of a property right or interest or the good will of a trade or business. See review of the case in Clark, Cont. pp. 455, 456. The contrary of this doctrine, however, is directly held in French v. Parker, 16 R. I. 219, 14 Atl. 870.

With conflicting authorities as to the application of the rules for testing the validity of contracts in partial restraint of trade, upon which all agree, we think a clear distinction must be taken between the class of cases binding one who has sold out a mercantile or other kind of business, and the good will there with connected, not to again engage in that business within a given territory, and that class of cases binding one to desist from the practice of a learned profession. I can readily perceive that a successor of a merchant, broker, or shopkeeper might reasonably expect to retain the former patronage of the place of business, but fully concur with the views expressed by the court in the case of Mandeville v. Harman, supra, that professional skill, experience, and reputation are things which cannot be bought or sold. They constitute part of the individuality of the particular person, and die with him. In that case the court said: "There can be no doubt, I think, that if the complainant was the most distinguished physician of the city of Newark, and had by far the most lucrative practice in that city, and he should be so unfortunate as to die next month or next year, it would be impossible for his personal representative to sell his good will or practice, as a thing of property distinct from the office which he had occupied prior to his death, for any price; and I think it is equally obvious that, if it were sold in connection with his office, the only possible value which could be ascribed to it would be the slight possibility that some of the persons who had been his patients might, when they needed the services of a physician, go or send there for the next occupant of the office. The practice of a physician is a thing so purely personal, depending so absolutely on the confidence reposed in his personal skill and ability, that, when he ceases to exist, it necessarily ceases also,