Dwight v. Hamilton , 113 Mass. 175 ( 1873 )

Endicott, J.^*

The injunction already issued should be made perpetual. On the part of the plaintiff the contract has been performed, and he has removed to Douglas and entered upon the practice that he purchased. It is admitted that the consideration was paid by the wife of the plaintiff and the deed given to her by consent of the parties. The money was therefore paid and the deed given in pursuance of the contract, and the defendant cannot now raise the question that the plaintiff did not himself perform it according to its letter. Neither the contract nor the benefit to accrue to the plaintiff under it were changed by this arrangement; it affected only the manner of payment.

On the part of the defendant there has been a clear breach of his bond. The fair construction of the obligation is, that the defendant agreed to sell to the plaintiff his land and buildings, and his practice and good will as a physician in Douglas, for the sum of $5500. Upon payment of this sum and the delivery of the deed of the land, the practice and good will of the defendant as a physician within the limits of Douglas passed to the plaintiff as well as the land.

The sale of the practice and good will of a physician within certain limits is the legitimate subject matter of a contract, and carries with it the implied covenant, as in other sales, that the vendor will not himself do anything to disturb or injure the vendee in the enjoyment of that which he has purchased.

The case is clearly to be distinguished from Bassett v. Percival, 5 Allen, 345, relied on by the defendant. There the good will of the trade of a particular store in Boston was sold, not the good will of the trade of the store within the limits of the city. No limits were designated beyond the store itself, and it was held that the vendor was not restrained in the absence of an express covenant from transacting the same business in another store, and that the opening a similar store in Boston was no breach of the agreement.

The case more nearly resembles Angier v. Webber, 14 Allen, 211, where the interest and good will of a teamster’s business between Boston and Somerville was sold. As in this case, certain limits were designated. There was no express covenant that the defendant would not enter into the same business on the same route, but simply a covenant that he would not do anything to impair or injure the business he had sold. But such covenant only expressed what otherwise would have been implied. It merely put into words the implied covenant, that follows from the sale of the business within certain Emits, in the same manner as a covenant is imphed, from the grant of a way or a watercourse, that the grantor will not stop or interfere with its enjoyment. In such case a covenant not to stop or interfere with it would add nothing to the grant, for what is implied is as much a part of the contract as what is expressed. And the court held that establishing a similar business on the same route was a breach of the agreement, and an injunction was granted.

Here the defendant within three months of the sale returned to Douglas, opened an office in the next house but one from his former office, and recommenced the practice which with its good will he had sold to the plaintiff. For such breach the plaintiff may have an action at law, or a more complete remedy in equity by injunction, and so compel the defendant to the performance of his agreement. Ensign v. Kellogg, 4 Pick. 1. Fox v. Scard, 33 Beav. 327. Howard v. Woodward, 10 Jur. (N. S.) 1123.

Nor is this agreement illegal as being in restraint of trade. The defendant gave up his practice in a particular place only for a valuable consideration, and it is well settled in Massachusetts that this does not violate any rule of public policy. Gilman v. Dwight, 13 Gray, 356. Angier v. Webber, supra. Atkyns v. Kinnier, 4 Exch. 776. Hoyt v. Holly, 39 Conn. 326.

Decree accordingly.

* This case was argued in writing, and considered by all the judges.