Osborne v. Benbow ( 1889 )

Ellison, J.

This action is based upon a petition by plaintiff asking an injunction restraining defendant from further engaging in the practice of medicine, in and around the town of Gilliam. The petition, after, setting up the contract whereby plaintiff bought defend-, ant’s interest in their partnership practice and office furniture, with the agreement that the defendant should not again practice his profession in that vicinity, proceeded tosíate “ that, although the defendant entered into said contract and accepted said notes from plaintiff as the consideration thereof — upon all which he has paid the amounts promised therein, either from plaintiff or other persons to whom defendant negotiated them ; and, although the defendant, in pursuance of said contract, quit the practice of medicine and surgery in said town and the vicinity and territory thereof for a time, yet the defendant has wholly disregarded his said contract, and did, in the month of December, 1886, wrongfully and illegally begin the practice of medicine and surgery in the said town of Gilliam and-the territory and the vicinity thereof, and has ever since, and now is continuing so to do, by reason of which the plaintiff has been damaged in the sum of two thousand dollars. That the defendant has, and, unless restrained, will, by practicing medicine and surgery in said'town and the. territory and vicinity thereof, continue to interfere with and greatly injure the business of plaintiff. That plaintiff has no adequate remedy at law, and unless the defendant is restrained the plaintiff will suffer irreparable injury. Wherefore the plaintiff prays that the defendant be enjoined and restrained from practicing medicine and surgery in said town of Gilliam, or the territory or vicinity thereof, while plaintiff practices there ; that plaintiff’s damages be ascertained, and that he have judgment therefor; that said injunction be made perpetual, and that the plaintiff have such other and further relief as he may be entitled to receive.”

The injunction was denied but a trial was had with the aid of a jury as to the damages, resulting in a verdict and judgment for plaintiff for one hundred dollars.

There is no bill of exceptions, no evidence, instructions or other thing preserved in the record, save the record entry of the trial and judgment and the petition and answer. This leaves us with nothing to pass on but the sufficiency of the petition to sustain the judgment of one hundred dollars’ damages; and we are of the opinion that it will. If defendant made the contract with plaintiff which is alleged, and broke it, as is charged, it cannot certainly be contended, that, as a matter of law, no damages could flow from such breach. In the condition in which the case is presented by the record, we have only to ascertain if there is enough contained in the petition to sustain a judgment for damages for a breach of contract. The judgment is affirmed.

All concur.