Hard v. Seeley

By the Court, Parker, P. J.

It seems to. me that the covenant of the defendant to pay, (the breach of which is the ground of this action,) is not dependent upon the fulfillment, by the plaintiff’s assignor, of the covenants to be performed on his part, but that the covenants of the parties are mutual and independent. The consideration of the defendant’s promise to pay, is : 1st. The sale and transfer to him of the .art and mystery of compounding and manufacturing the article of medicine known by the name of “ Dermador,” and the .sole and exclusive right to make, use and vend the same. ?d. The covenant of the vendor, not to communicate the art to any other person, and not to make or vend the article himself, blow, so far as the executory covenant of the vendor is concerned, it is perpetual, that he will never either communicate the art to another, or make or vend the nrticje himself; but the defendant’s covenant is to pay $1000, in yearly installments, beginning on the 24th day of May, 1862. The vendor’s right to the money, therefore, can not depend upon his fulfilling his eoyenant, for it can never be fulfilled, except by his continued abstinence from imparting the receipt for the medicine, and from making and vending it during his whole life; and yet the payment is to be absolutely made, at a time specified. It was said by Lord Kenyon, in Campbell v. Jones, (6 Term R. 570,) quoting from Holt, Gh. J. in 1 Salk. 113: “ When there are mutual promises, yet if one thing be the consideration of the other, then a performance is necessary to be averred, unless a day is appointed for performance. If a day be appointed for the payment of money, and the day is to happen before the thing can he performed, an action may be brought for the payment of the money before the thing be done.” And it. is laid down as a rule in 1 Saund. 320, note a, that if a day be appointed for the payment of money, or part of it, or the doing of any other act, and the day is to happen or may happen before the thing which is the consideration of the money or other act, an action may be brought for the money, or for not doing such other, act, before performance of the consideration—which rule is approved in Tompkins v. Elliot, (5 Wend. 497,) and Grant v. Johnson, (1 Seld. 253.) The case at bar is within this rule, and it was not necessary to allege in the complaint that the plaintiff had performed his covenants.

It is insisted that the complaint is bad, for the reason that it does not allege that the mode of compounding pnd manufacturing the medicine called Dermador, was a secret with Anderson. The point of this objection I understand to be, that it does not appear by the complaint, in the absence of such allegation, that there was any valuable consideration for the covenant of the defendant. I am inclined to think that this objection is not well taken. The allegation is that Anderson sold and transferred to the defendant' the art and mystery, &c. and the exclusive right to make and vend the article. It was not, I think, indispensable that it should have been averred that there was such an art and mystery, and that it was known to Anderson and not to the defend* ant, and that Anderson had the exclusive right to use it—in other words, that he had this property to sell. This is sufficiently .implied, I think, in the allegation of the sale. If instead of this art and mystery, the sale had been of a horse, for which the defendant had promised to pay, i't would scarcely be insisted that it would be necessary to aver that Anderson had the horse, or was its owner; but the averment that in consideration that he then sold and transferred to the defendant a horse, the defendant promised to pay him therefor the sum of §100, would be sufficient, without an averment that Anderson had or owned the horse. (2 Chit. Pl. 55, note s, 7th Am. ed.) I think the averment that he had the secret of making this compound equally unnecessary.

Moreover, this complaint is drawn under section 152 of the Code, which makes it sufficient, unless the action is on an instrument for the payment of money "only, for a party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party a specified sum which he claims. It was not necessary to set forth the legal effect "of the contract, but if the contract itself, when put in evidence on the trial, together with proof of its transfer to the plaintiff, would make a prima facie case for the plaintiff, the pleading is sufficient. (Prindle v. Caruthers, 15 N. Y. Rep. 431.) It seems to me quite clear that it would not be necessary for the plaintiff, in addition to proof of the contract, to prove that he had such a secret as that spoken of in the contract. It would be matter of defense if he had not, as failure of consideration. The case of Alcock v. Giberton, (5 Duer, 76,) cited as authority that it was necessary to allege that the art and mystery sold was a secret with Anderson, was not an authority to that effect. There is an incidental remark in the opinion of the judge at special term, that the want of an allegation of that nature was understood to have been the ground of an allowance of a demurrer to the original complaint, but We have no report of that case, and no sufficient statement to make it a guide for any subsequent case.

Again, it is said that the contract is void as against public policy, being in restraint of trade. The principles upon which certain agreements in restraint of trade are held void, do not apply to such a case as this. It was held in Jarvis v. Peck, (10 Paige, 118,) that a person engaged in a particular business, which he is carrying on by means of a secret process which he has discovered, may sell the secret to another, and may lawfully contract with the purchaser, that he will not thereafter use that secret in such business, without the consent of the purchaser, and will'not disclose the secret to others. So in Bryson v. Whitbeck, (1 Sim. & Stu. 74,) it was held that although the policy of the law will not permit a .general restraint of trade, yet a trader may sell a secret of business, and restrain himself generally from using the secret. The same was held in Alcock v. Giberton, (5 Duer, 76.)

The claim of the defendant, that the contract is void as against him, because he, the defendant, has failed to fulfill, on his part, is an incorrect construction of the following-clause in the contract: “ And it is further agreed that if the party of the second part fails to fulfill the agreement herein contained, then this contract is to be null and void.” That is, if the vendee fails to pay, the vendor may at his option declare the contract null and void. It surely can not be held to mean that the vendee may take and enjoy the fruits of the sale to him for three years and more, and then by failing to perform on his part, make the contract null and void, so that the vendor can not hold him responsible in damages for his breach of the contract. This construction would contravene that fundamental maxim of the law, “ no man shall take advantage of his own wrong,” and therefore can not be adopted. (Hyde v. Watts, 12 Mees. & W. 254. Broom’s Legal Maxims, 210, 211.)

Nor is the contract void, because of the agreement that the defendant may use the name of Anderson on the labels accompanying the Dermador. Such use of the name does not necessarily imply a fraud upon the public as is assumed, and was but the use of a trade mark, which the proprietor of it might, I think, lawfully authorize another to use.

[Broome General Term, July 11, 1865,

I am of opinion, therefore, upon the whole case, that the complaint is sufficient, and not demurrable, and that the order sustaining the demurrer should be reversed, with costs.

So decided.

Parker, Mason and Balcom, Justices,]