Boyce v. Watson , 52 Ill. App. 361 ( 1893 )

Mr. Presiding Justice Boggs

delivered the opinion of the Court.

The covenant of these parties only required the plaintiff in error to abstain from the exercise of his calling for a limited time in a particular place.

The restriction was not violative of public policy but was valid.

This principle is so familiar and well recognized that it needs no citation of authorities in its support.

Another principle applicable to this contention is declared in Gobble v. Linder, 76 Ill. 157, to be equally well settled, and that is if the parties to an agreement have named in the instruments a sum as a forfeiture or penalty in case of a breach it will generally be so treated, and damages awarded according to the wrong or injury shown by evidence to have been inflicted by the breach; but that if the intent of the parties to be gathered from the instrument considered altogether is that, though denominated a forfeit or a penalty, the sum so named was intended as liquidated damages, it will be so regarded if the damages arising from a breach are uncertain and not capable of being ascertained by any satisfactory or known rule for measuring damages.

In the case at bar we are not left to the necessity of gathering or inferring the intent of the parties relative to the sum named from the whole instrument, because the express words of the covenant are that the plaintiff in error in case of a breach, “will forfeit and pay said Watsons the sum of • one thousand dollars liquidated damages.” Moreover, it is manifest that the damages which would result from a breach of a covenant not to engage in the business of photography are uncertain and difficult of ascertainment as an issue or question of fact, and as it appears from the face of the covenant that the parties agreed upon a sum certain as liquidated damages in case of a breach, and there being no reason apparent why such sum should be deemed disproportionate to the real or possible damages thus agreed and fixed, we think the ruling of the Circuit Court that the amount of the recovery was controlled and fixed by the sum stipulated, was correct. Gobble v. Linder, supra; Perrie v. Webber, 47 Illinois, 41; 13th Am. & Eng. Ency. of Law, 854-56 and 867.

Counsel for plaintiff in error argue that as the pleas aver that the plaintiff in error retired from business after selling out to the Watsons, and remained out of the business while Stephen Watson engaged in it in Danville, and only exercise his skill in photography after the Watsons had retired from such business in Danville, under a contract on the part of Stephen Watson not to engagein it again in that city for five years, that it undisputably appeared from the pleas that no actual damage accrued to the defendants in error or either of them, and as in the absence of actual injury and damages there can be no recovery of liquidated damages, the pleas presented a complete defense and the court erred in holding to the contrary. The contract and covenant of the plaintiff in error that he would not engage in business as a photographer in Danville within five years from its date was a valid and binding obligation, and as such, was enforceable in the courts. It can not be said that defendants in error can not possibly be interested in the performance of the contract, nor be damaged by its breach, simply because neither of them are engaged in, nor interested in, the business of photography in Danville. For aught that appears in the pleas, they, or one of them, may be engaged or interested in such business in the immediate vicinity of that city and may suffer because of the exercise by the plaintiff of his skill, experience and reputation as a photographer in Dan-ville, to an extent but little, if any, less than if the parties were rivals in the business in the same city or village. The exercise of his calling by the plaintiff in error in Danville, may be prejudicial to the defendant in other ways which can not and need not be the subject-matter of conjecture. He legally bound himself to defendant, in error for a consideration, not to so exercise his calling in that city for a limited period of time, and agreed that if he violated his covenant, that the damages to be paid by him to them should not be left to the courts to determine as a matter of fact, but should be estimated and fixed at $1,000.

He received and enjoyed, or is yet in the enjoyment of the • considerations paid for his agreement to so abstain from his calling, and, as he has refused to abide by his covenant, it can only be held that he is liable for its breach.

The obligees are entitled to the full benefit of the covenant, and the obligor does not fully answer its violations by saying that the obligees are no longer his rivals in Danville. The pleas were properly held insufficient.

The judgment must be and is affirmed.