Jenkins v. Abbotts ( 1874 )

Isaac W. Smith, J.

No question of fraudulent 'representation is suggested as entering into the contract between these parties. The only question is, Was there a sufficient consideration for the promise of the defendants ?

It is claimed by the defendants that the contract is undurn factum,— without consideration. The parties admit that the Scrimshaw patent, ■as a patent, is worthless. The plaintiff “ let or leased ” (whatever that may mean) to the defendants for a term, the right and privilege of laying or putting down concrete paving in West Roxbury, in consideration of a royalty of eight cents per square yard, to be paid for all paving so put down. No mention is made in the lease or writing that the paving is the Scrimshaw patent, although it is admitted that that is what was intended. The patent being worthless, the defendants by the contract acquired no right to do anything that they had not previously a right to do. The opportunity was open to any and all who chose to embark in the business, in West Roxbury, of putting down concrete paving.

Earl v. Page, 6 N. H. 477, seems to be decisive of this case. That was a suit upon a note given for a shingle machine, and for the exclusive right to use the same in a certain district, under a patent claimed by the plaintiff, which was void by reason of the non-compliance by the patentee with the terms of the statute. The maker of the note having paid the value of the shingle machine, the court held that the remaining consideration had failed, and that the plaintiff could not recover.

If it was any part of the agreement that Jenkins was not to engage in the business of laying concrete paving in West Roxbury during these two years, it would be a good consideration for the promise of the defendants to him. Perkins v. Clay (Grafton Co.), post. Does the agreement so provide ? The contract does not purport to grant an exclusive right or license to put down concrete paving. It does not state that the plaintiff had any light or interest whatever to convey. The only right he claims to have had was under a patent which he admits was worthless. Contracts are to be construed most strictly against the grantor; and it is equally true that contracts in restriction of trade are to be construed strictly, as being against public policy. No agreement not to engage in the business of laying such pavements appears from the terms of the contract or lease, and we are satisfied that the language used does not authorize such an agreement by inference. If such an agreement was made by parol, it is void by statute, as being an agreement not to be performed within one year.

Upon the agreed statement of facts this action cannot be maintained.

Case discharged.