Paxson's Appeal

Mr. Justice Trunkey

delivered the opinion of the court,

Little need be said in vindication of the decree. In this court the validity of the contracts dated respectively February 2, 1871, and May 22, 1875, has not been questioned, and the construction of the latter by the learned judge of the common pleas, harmonizes with the understanding thereof by the parties at the time of its execution as shown by their acts immediately following. No difference has arisen respecting the meaning of the first. Dr. Betts agreed never to locate again in Jenkintown for the purpose of resuming the practice of medicine, and that he would never in any way practise medicine within a radius of five miles of Jenkintown.

By the second contract Dr. Paxson agreed that Dr. Betts might locate anywhere within the limits of the city and county of Philadelphia for the purpose of practising medicine, without limitation or restriction, on condition that if on April 1, 1876, said Betts should desire and decide to continue the practice of medicine within five miles of Jenkintown, he should pay to said Paxson five hundred dollars without delay or further demand. After said date Betts paid and Paxson received the money. The contract contains the following clause: “Nothing herein contained shall refer or include any place without the limits of the city and county of Philadelphia.'’ From the ability of the parties to express their meaning, as shown in all other parts of their contracts, it might be inferred that they purposely inserted this clause to create future contention. Now, one claims that it left the first contract in force as to the circuit around Jenkintown, except the part in Philadelphia; the other, that it only applies to the residence and location of Betts. Upon the face of the agreement, the point is not easily determined. Betts was granted the right to practise medicine without any limitation or restriction whatever, and after exercising that right until April 1, 1876, if he desired to continue said practice within five miles of Paxson’s residence, Jenkintown, he should pay a stipulated sum : but he could, not locate within five miles of Jenkintown,, without the limits of Philadelphia. The unrestricted right to practise was granted upon payment of the price agreed upon —the right to reside or locate was restricted. Obviously the right to practise in Jenkintown and vicinity would have been' of greater value accompanied with an unrestricted right of location and residence. For this reason the clause may have,: been inserted for greater certainty of preventing Betts locating in Jenkintown. Had the parties intended to limit the. practice to that part of the circuit where Betts was permitted to locate, nothing could have been easier than to have said so. ‘ Having so clearly-granted the right to practise within the entire circuit and limited location as to part, it would seem that the clause of doubtful meaning referred to location as that is more advantageous to the purchaser. The contemporaneous acts of the parties may well be invoked as indicating' their intention, where the meaning of a clause is doubtful. Ambiguities in a written instrument may be explained by parol evidence: Caley v. Railroad Co., 80 Pa. St., 363.

The Master finds: “For over five years the defendant acting upon his construction and understanding of the paper written by himself, had been practising medicine within the', disputed limits without any objection on the part of the plaintiff who had knowledge that he was so practising. They met in attendance — in consultation and on the road, and yet we have no word of remonstrance or objection. On the contrary, when negotiations were attempted to be opened for purchase by defendant of'further privileges, Dr. Paxson inva-" riably replied that Dr. Betts already had an unrestricted right' to practise, but would not grant him the right to. locate.” This finding was warranted by the testimony.

The bill was filed September 8, 1880. Betts was practising in the disputed territory before the time fixed for him to decide whether he would continue the practice and pay the purchase money, and with knowledge of such practice Paxson' took the money, and was silent for several years. In the light of the understanding of the parties as shown, by their acts, we think the intendment was, that Betts should have unrestricted right to practise Ms profession, but should not locate within certain limits.

We are of opinion that there is no error in the ruling respecting damages.

At the argument, the plaintiff put much stress on the affirmance by this court of the decree for interlocutory injunction. No rule is better settled than that an interlocutory injunction is provisional and concludes no right. But on appeal the affidavits and testimony must be returned that this court may re-hear and decide the case on its merits, that is, on its merits with reference to the matters upon which the court below granted or refused the interlocutory injunction. In cases of appeal from a decree refusing, or granting, a preliminary injunction, the general rule is to express no opinion upon the merits of the case, but merely say whether we think the discretion of the court was rightly exercised: Hoffman’s Appeal, 10 W. N. C., 401.

Dr. Betts, in July, 1880, in flagrant violation of his contract, located in Jenkintown for the purpose of practising medicine, and so announced to the public. The court of common pleas made a decree enjoining him until final decree, from practising medicine without the limits of Philadelphia, within a circuit of five miles of Jenkintown, which, on his appeal, was affirmed. Had he proposed to remove his location without said limits, and called attention to his right to practise there, when located elsewhere, perhaps either in the court below, or in this court, the interlocutory decree would have been of different character. Be that as it may, it concluded no right. The plaintiff then, as now, claimed the defendant had no right to practise within the limits defined in the decree.

Decree affirmed and appeal dismissed, at the costs of the appellant.