Courts are less disposed to sustain an agreement which forms part of a contract of employment to refrain from subsequently engaging in competitive occupation than where a similar agreement is attached to a contract of sale.88 There is likely

87 Ferris v. American Brewing Co., 155 Ind. 539, 58 N. E. 701, 52 L. R. A. 305; Rose v. Gordon, 158 Wis. 414,149 N. W. 158. See also Catt v. Tourle, L. R. 4 Ch. 054; Clay v. Powell, 85 Ala. 538, 5 So. 330, 7 Am. St. Rep. 70; Sutton v. Head, 86 Ky. 156, 5 S. W. 410,9 Am. St. Rep. 274; Herpolsheimer v. Punke, 1 Neb. (Unof.) 304,95 N. W. 687. C/. Crawford v. Wick, 18 Ohio 8t. 190, 98 Am. Dec. 103; Fuqua v. Pabst Brewing Co., 90 Tex. 298, 38 S. W. 29, 750, 35 L. R. A. 241.

88 Herbert Morris, Ltd., v. Saxelby, [1916] 1 A. C. 688; Allen Mfg. Co. v. Murphy, 23 Ont. L. R. 467. See also Ward v. Byrne, 5 M. & W. 548; Leng v, Andrews, [1909] 1 Ch. 763, 773; Keeler v. Taylor, 53 Pa. 467, 91 Am. Dec. 221; Caroll v. Giles, 30 S. C. 412, 9 S. E. 422, 4 L. R. A. 154; George Weston, Ltd., v. Baird, 31 Dom. L. R. 730; Mizon v. Pohoretzky, 38 Dom. L. R. 214, 215. As to the right of the employee, apart from restrictive promise, to compete with his former employer, see tupra, Sec. 1025, ad fin.

In Herbert Morris Ltd. v. Saxelby,

[1916] 1 App. Cas. 688 (affirming 11915] 2 Ch. 57), the House of Lords, held that in determining whether a covenant in restraint of trade was enforceable, a covenant exacted by the purchaser from the vendor on a sale of the good will of a business stood on a different footing from a covenant exacted by an employer against his employee; and apparently in the latter case a covenant against competition per se (that is where no violation of the employer's business secrets is involved), will not be enforced.

The plaintiff company were the leading manufacturers of hoisting machinery in the United Kingdom, and the defendant had been in the company's employment as draughtsman and otherwise from the time he left school. After several years' service the defendant was engaged by the company as engineer for two years certain and thereafter, subject to four months' notice on either side, upon the terms of an agreement which contained a covenant by the defendant with the company that he would not during a to be greater hardship to the promisor and therefore injury to the public, in the former case, as for instance where an employee, expert in a narrow and technical specialty, engages not to practice his specialty. The distinction, however, seems unadvisable as a positive rule of law. If it is rightful to protect a business when it is purchased it should be lawful to protect an established business from injury by an employee,89 unless circumstances of great hardship exist. The ultimate question should be the same in both cases, - what is necessary for the protection of the promisee's rights and is not injurious to the public.90 period of seven years from his ceasing to be employed by the company, either in the United Kingdom of Great Britain or Ireland, carry on either as principal, agent, servant, or otherwise, alone or jointly or in connection with any other person, firm, or company, or be concerned or assist, directly or indirectly, whether for rewjard or otherwise, in the sale or manufacture of pulley blocks, hand overhead runways, electric overhead runways, or hand overhead travelling cranes. It was held that in any event the covenant was wider than was required for the protection of the plaintiff company and was not enforceable.

89 This argument was upheld in Eureka Laundry Co. v. Long, 146 Wis. 205,131 N. W. 412, 35 L. R. A. (N. S.) 119.

90 In the following cases agreements of employees to refrain from subsequent competition were sustained: Dendy v. Henderson, 11 Exch. 194 (solicitor's clerk agreed not to practice as a solicitor for 21 years after end of employment within 21 miles); Gravely v. Barnard, L. R. 18 Eq. 518 (surgeon's assistant agreed not to practice as a surgeon at the place of employment); Sainter v. Ferguson, 7 C. B. 716 (like the preceding); Rousillon v. Rousillon, 14 Ch. Div. 351 (traveller for the sale of wine agreed not to engage in champagne trade for ten years after end of employment); Parsons v. Cotterill, 56 L. T. (N. S.) 839 (employee of wine merchant agreed not to enter competing occupation within fifty years); Rogers v. Maddocks, [1892] 3 Ch. 346 (brewer's employee agreed not to be concerned for two years in sale of malt liquor within a hundred miles); Underwood v. Barker, [1899] 1 Ch. 300 (employee of wholesale hay and straw dealers agreed that for twelve months after the end of his employment, he would not compete in Great Britain, or in certain specified foreign countries where the employer did business); May v O'Neill, 44 L. J. Ch. (N. S.) 660 (a solicitor's clerk agreed not to act in that profession, after the end of his employment, within two miles); Lyd-don v. Thomas, 17 T. L. Rep. 450 (a stockholder's clerk agreed not to enter competing business within fifty miles for twenty years after the end of employment); Edmundson v. Render, 90 L. T. (N. 8.) 814 (a solicitor's clerk agreed not to practice that profession within a radius of fifteen miles); Carter v. Ailing, 43 Fed. 208 (travelling salesman of manufacturers agreed not to accept employment for a competitor for three years after the end of employment); Harrison v. Glucose Sugar Refining Co., 116 Fed. 304, 53 C. C. A. 484, 58 L. R. A. 915 (travelling sales-

Where an employee will acquire by virtue of his employment trade secrets, the law permits greater restriction to be imposed by contract on the employee than in other contracts of employman for manufacturer agreed not to accept employment from a competitor within 1500 miles of Chicago for three years); S. Jarvis Adams Co. v. Knapp, 121 Fed. 34, 58 C. C. A. 1; Knapp v. S. Jarvis Adams Co., 135 Fed. 1008, 70 C. C. A. 536 (employee of a manufacturing company on leaving agreed for consideration not to enter into competing employment for ten years); Cropper v. Davis, 243 Fed. 310, 156 C. C. A. 90 (stated infra, Sec. 1660, n. 40); Freuden-thal v. Espey, 45 Colo. 488, 102 Pac. 280, 26 L. R. A. (N. S.) 961. (Physician employed by another agreed not to practice in city of Trinidad for five years after end of employment); Hoops Tea Co. v. Dorsey, 99 HI. App. 181 (solicitor for tea company agreed not to compete in the city for two years after the end of his employment); American Ice Co. v. Lynch, 74 N. J. Eq. 298, 70 Atl. 138 (solicitor for ice, company agreed not to compete on the same route or within five squares for a year after the end of his employment); Hackett v. Reynolds Co., 30 N. Y. Misc. 733, 62 N. Y. S. 1076 (solicitor for groceries agreed not to compete within ten miles of the city for six months after the end of his employment); Magnolia Metal Co. v. Price, 65 N. Y. App. Div. 276, 72 N. Y. S. 792 (travelling salesman for manufacturer agreed not to enter competing occupation for five years after the end of employment); Stover v. Gamewell Fire-Alarm Telegraph Co., 164 N. Y. App. Div. 155, 149 N. Y. S. 650 (an agreement by a corporation to pay its president a stipulated sum for life upon the severing of his connection, in consideration of his refraining to enter into competition); Wilkinson v. Ebbets, 103 N. Y. Misc. 324, 170 N. Y. S. 1041 (employee of a paper jobber who had bought the good will of the former, agreed not to engage in similar business in New York and five other States for three years from termination of employment); Srolowits v, Roseman (Pa.), 107 Atl. 322 (meat dealer's employee agreed not to enter into similar business or accept employment in such business in Philadelphia for year after the end of his employment); Til-linghast v. Boothby, 20 R. I. 59, 37 Atl. 344 (a dentist's assistant agreed not to engage in dentistry within the county after the end of his employment); Turner v. Abbott, 116 Tenn. 718, 94 S. W. 64, 6 L. R. A. (N. S.) 892 (a dentist's assistant agreed not to engage in dentistry within the town or its vicinity after the end of his employment); Patterson v. Crab (Tex. Civ. App.), 51 S. W. 870 (a teacher agreed not to accept employment as a teacher in the same city after the end of his employment). Cf. Mandeville v. Harman, 42 N. J. Eq. 185, 7 Atl. 37, where an agreement by a physician unlimited in time, though limited to a single town was held invalid.

In Michigan any agreement or contract not to engage in any trade, profession or business whether reasonable or unreasonable, partial or general, limited or unlimited, is declared by statute illegal and void. See Grand Union Tea Co. v. Lewitsky, 153 Mich. 244, 116 N. W. 1090. So far as concerns contracts of employees, such also seems to be the effect of Calif. Civ. Code, Sec.Sec. 1673-1675, and similar provisions in Oklahoma. Every contract restraining one from exercising a lawful trade, profession or business, is made void with two exceptions. A partner on dissolution of partnership may agree not to carry on a similar business in the same town, and on ment;91 but the restraint must not be unreasonable even in such a case.92 An agreement by an employee that all patents for inventions relating to a particular art to which the employment was related which he should secure should belong to his employer, has been upheld and specifically enforced in regard to a patent applied for after the termination of the employment.93