Warren v. Jones , 51 Me. 146 ( 1862 )

The opinion of the Court was drawn up by

Cutting, J.

In our view, of this case, it becomes unnecessary to consider the rulings of the Judge at Nisi Prius, made previous to the amendment of the writ, by the insertion of the new count on the written contract, which was as follows, viz.:— "Kennebunk, Oct. 16, 1858.

"Mr. Edmund Warren,

" Bo’t of George T. Jones,

"All the apparatus for making soap, consisting of boilers, leaches, bbls., tubs, &c.; also, all the ashes and soap, &c., now on hand; also, one wagon, one pung-double runners; 'also, all my trade and customers.

"Rc’d payment by cash and notes,

" George T. Jones.”

Upon the introduction of this written contract, or bill of sale, it was incumbent on the Judge to give the legal construction, unless it embraced some latent ambiguity; in which event he should have submitted the construction to the jury, together with such parol testimony as might tend to the ascertainment of the intention of the parties.

It is only the last clause in the contract, which leads to any embarrassment. But, in our opinion, the perplexity was not so great as to need the intervention of the jury.

Taking the whole contract together, can there be any doubt as to the real intention of the parties ? In short, the plaintiff purchased " all the defendant’s apparatus for making soap,” the real value of which might depend in a great degree upon subsequent competition in that business in the neighborhood, where the same had been successfully carried on by the vendor, whom the vendee might well fear as a successful rival. To avoid such a contingency, the defendant conveyed " all his trade and customers,” which, being legally interpreted, must mean that he would not interfere with the plaintiff within the circuit of his usual custom. The plaintiff offered evidence that he had so interfered, which we think should have been admitted. We are also of the opinion that the contract was not against the policy of the law; if otherwise, it is not for the defendant to invoke it and at the same time retain the consideration.

Exceptions sustained.I, — JVonsuit taken off,— And the case is to stand for trial.

Tenney, C. J., Appleton, May and Davis, JJ., concurred.