Sec 430

Life, liberty, and the privilege of pursuing any employment not prohibited or limited by the state are rights of which no person can divest himself by a binding contract. Jus publicum privatorum vol-untate mutari nequit. Hence an agreement by which life is to be taken is void;1 and so of an agreement that a party's liberty should be restrained;2 or that fundamental constitutional privileges should be surrendered.3 In the same line may be placed agreements by a party that he will abstain everywhere from the exercise of a particular business of which the state permits the exercise.4 Such agreements are prejudicial to the body politic in depriving the community of the labor of men in the spheres in which they are likely to be most useful, and in establishing monopoly by the buying out of competition.5

Agreements to surrender inalienable rights are void.

45 ib. 564; Lytle v. State, 17 Ark. 608. The common law doctrine, however, as has been stated, prevails in Missouri, according to the doctrine of the supreme court of the state in Duke v;. Harper, 66 Mo. 55. See observations of McCrary, J., Courtright v. Burns, ut supra.

1 Wh. Cr. L. 8th ed. sec 145.

2 Ibid. sec 146; Smith v. Com., 14 S. & R. 69.

3 Ibid. sec 145 a.

4 Leake, 2d ed. 735; Mitchel v. Reynolds, 1 P. Wms. 195; Whitney v. Slayton, 40 Me. 224; Alger v. Thacher, 19 Pick. 51; Taylor v. Blanchard, 13 Allen, 370; Nobles v. Bates, 7 Cow. 307; Dakin v. Williams, 11 Wend. 67; Keeler v. Taylor, 53 Penn. St. 467; Gompers v. Rochester, 56 Penn. St. 194; Harkinson's App., 78 Penn. St. 196; Davis v. Barney, 2 Gill & J. 382; Lange v. Werk, 2 Oh. St. 520; Craft v. McConoughy, 79 111. 346; Jenkins v. Temples, 39 Ga. 655; Callahan v. Donelly, 4 Cal. 152. In Keeler v. Taylor, 53 Penn. St. 468, Keeler agreed to instruct Taylor in the art of making platform scales, and to employ him in that business. Taylor was to pay Keeler $50 for each scale he should make for any other person than Keeler, or which should be made through information given by him. The court held that this was an unreasonable restriction on Taylor's liberty of action, and that the contract was invalid. "Though contracts," so said the court, "for partial restraints may be good at law, equity is loath even then to enforce them, and will not do so if the terms be at all hard or even complex." "If it were not void, however, a chancellor would regard the hardships of the bargain and the prejudice to the public, and would withhold his hand in enforcing it.".

As authorities to the effect that liberty of travel is not to be restrained, see State v. Hartford & N. H. R. R., 29 Conn. 538.

5 Frost v. Belmont, 6 Allen, 152. See Alger v. Thacher, 19 Pick. 51, where Judge Morton says: " The un-resonaableness of contracts in restraint.

431.].

Sec 431

An agreement, therefore, by which a party, entitled to do a particular business, binds himself generally not to do of trade and business is very apparent from several considerations: 1. Such contracts injure the parties making them, because they diminish their means of obtaining livelihoods and a competency for their families. They tempt improvident persons, for the sake of present gain, to deprive themselves of the power to make future acquisitions. And they expose such persons to imposition and oppression. 2. They tend to deprive the public of the services of men in the employments and capacities in which they may be most useful to the community as well as themselves. 3. They discourage industry and enterprise, and diminish the products of ingenuity and skill. 4. They prevent competition and enhance prices. 5. They expose the public to all the evils of monopoly. And this especially is applicable to wealthy companies and large corporations. who have the means, unless restrained by law, to exclude rivalry, monopolize business, and engross the market. Against evils such as these wise laws protect individuals and the public by declaring all such contracts void." Compare Perkins v. Clay, 54 N. H. 518; Fuller v. Dame, 18 Pick. 472.

In Allsopp v. Wheatcroft, L. R. 15 Eq. 59, Wickens, V.-C, thus speaks: "There has been a natural inclination of the courts to bring within reasonable limits the doctrine as to these covenants laid down in the earlier cases, but it has generally been considered in the later as well as in the earlier cases that a covenant not to carry on a lawful trade, unlimited as to space, is on the face of it void. This seems to have been treated as clear law in Ward v. Byrne (5 M. & W. 548) and in Hinde v. Gray (1 M. & G. 195), and in other cases; and the rule, if not obviously just, is at any rate simple and very convenient. No doubt, in the case of The Leather Cloth Company v. Lorsont (21 L. T. Rep. N. S. 661; L. Rep. 9 Eq. 345), James, L. J. (then vice-chancellor), threw some doubt on the existence of a hard and fast rule which makes a covenant in restraint of trade invalid if unlimited in area." From this Fry, J., in Rousillon v. Rousillon, L. R. 14 Ch. D. 351, 42 L. T. N. S. 679, dissents, holding that there is no absolute rule as to space; citing to this effect the observations of Bram-well, B., in Jones v. Lee, 1 H. & N. 189. Rousillon v. Rousillon, however, was a case of breach of trust by an agent, and not of a violation of an agreement in a sale of good-will. See infra, sec 435, 437. The plaintiffs were champagne merchants at Epernay, in France. The defendant, whose name was the same as that of the plaintiffs, having entered their house and learnt the business, acted for two years as their representative in England, and then wrote a letter to them, by which he undertook not to represent any other champagne house for two years after leaving the plaintiffs' employment, and not to establish himself or associate himself with other persons or houses in the champagne trade for ten years after leaving them. The defendant left the plaintiffs' employment in March, 1877, and in May, 1878, commenced business in London as a retail wine merchant, and sold champagne as well as other wines. In his circulars and advertisements, and on the labels and corks of the champagne bottles, were the words "Ay Champagne," but he had no establishment such business, is void on the ground that the right to do business, under such limits as the state prescribes, is an inalienable right, of which no person can divest himself.1 It is otherwise, however, as to an agreement not to do business in a particular place. A professional man or tradesman, for instance, may have built up a business in a particular neighborhood, which, on account of health, or for other reasons, he is desirous of leaving. Now, so far from trade being restrained by permitting him to sell the good-will of this business, trade is furthered by such an agreement, since in this way business energies, which might otherwise be lost, are preserved. The party moving away obtains something like a price for his past labors; the market value of labor of the same class is placed on a more definite footing; and while he is able to pursue his calling elsewhere under more convenient conditions, immediate activity is given to his successor, whom the climate and other qualities of the place transferred may suit.2 "It may anywhere except in London. It was held that the defendant had committed a breach of the agreement, and that the restriction was not larger than was necessary for the proper protection of the plaintiffs. The application was for an injunction; and, as the case was a breach of trust, it stood on different grounds from infringements of agreements in sales of good-will. See, also, as to breaches of trust, infra, sec 435. Mr. Pollock, 3d ed. 335, holds Allsopp v Wheatcroft to be in direct conflict with Rousillon v. Rousillon. As to danger of assuming public policy as a test, see Hilton v. Eckersley, 6 E. & B. 47; Hill v. Spear, 50 N. H. 274. In Mallon v. May, 13 M. & W. 511, Parke, B., adopted the rule of Tindal, C. J., in Horner v. Graves, 7 Bing. 743, that " whatever restraint is larger than the necessary protection of the party with whom the contract is made is unreasonable and void." This is adopted by Mr. Benjamin (Sales, 3d Am. ed.

Agreement binding party not to do business in a particular place may be sustained.