§ 680. But an agreement in partial restraint of trade, restricting it within certain reasonable limits, as in one county.10 or within reasonable times,11 or confining it to particular persons, would, if made upon a legal consideration, be valid.1 And this modification of the rule obtained as early as during the eighteenth year of the reign of James I. (1621).2 Such an agreement not only does not obstruct trade, but is oftentimes requisite and necessary, as well for the advantage of the public as of the individual.3 Yet such a contract, though it be under seal, requires a sufficient consideration, which must be either apparent on the face of the deed, or exist in fact, or, if contested, be established by proof.4 This is, perhaps, the only exception to the general rule, that a specialty imports a consideration which cannot be denied by either party, although its failure or illegality may be shown aliunde. But in cases of this kind, the consideration may be disproved; although it is otherwise, if it is apparent upon the deed, when it will be presumed to be sufficient.5 But if a sufficient consideration be admitted in. the pleadings, the deed in restraint of trade will be sustained, although it do not, in its terms, express the exact consideration. Thus, where the plaintiff declared that the defendant, for the consideration mentioned in the deed declared upon (which the plaintiff brought into court), covenanted to submit to certain restrictions of trade, which covenant he broke, it was held, on general demurrer, that the consideration was sufficiently stated.6 It is not necessary, however, that the consideration should be adequate, in point of fact; for a consideration which would be legally sufficient to support a simple contract, will be ordinarily sufficient to support an agreement for a particular and partial restraint of trade.1 Thus, one dollar was held to be a sufficient consideration for a contract not to run a stage-coach in
1 Alger v. Thacher, 19 Pick. 53.
2 Hinde v. Gray, 1 Man. & Grang. 195; s. c. 1 Scott, N. R. 123.
3 Lange v. Werk, 2 Ohio St. 520.
4 Taylor v. Blanchard, 13 Allen, 370 (1866).
5 Lawrence v. Kidder, 10 Barb. 641. See Dunlop v. Gregory, 6 Seld. 241.
6 Lawrence v. Kidder, 10 Barb. 641.
7 Vickery v. Welch, 19 Pick. 523.
8 Crawford v. Wick, 18 Ohio St. 199 (1868).
9 Harrison v. Lockhart, 25 Ind. 112 (1865).
10 Lange v. Werk, 2 Ohio St. 519; Studabaker v. White, 31 Ind. 211 (1869).
11 See Hastings v. Whitley, 2 Exch. 611; Sainter v. Ferguson, 7 C. B. 716; tficholls v. Stretton, 10 Q. B. 346; Bowser v. Bliss, 7 Blackf. 344.
1 Rannie v. Irvine, 7 Man. & Grang. 976; Chappel v. Brockway, 21 Wend. 157; Hartley v. Cummings, 5 C. B. 247; McClurg's Appeal, 58 Penn. St. 51 (1868); Gompers v. Rochester, 56 Penn. St. 194 (1867); Jenkins v. Temples, 39 Ga. 655 (1869).
2 Broad v. Jollyfe, Cro. Jac. 596.
3 Bunn v. Guy, 4 East, 190; Mitchel v. Reynolds, 1 P. Wms. 181; Pierce v. Woodward, 6 Pick. 206; Perkins v. Lyman, 9 Mass. 522; Hayward v. Young, 2 Chitty, 407; Hitchcock v. Coker, 1 Nev. & Per. 796; s. c. 6 Ad. & El. 438; Homer v. Ashford, 3 Bing. 322; Shackle v. Baker, 14 Ves. 468; Palmer v. Stebbins, 3 Pick. 188; Davis v. Mason, 5 T. R. 118. See also Mallan v. May, 11 M. & W. 653; Wickens v. Evans, 3 Y. & J. 318.
4 Mitchel v. Reynolds, 1 P. Wms. 181; Hutton v. Parker, 7 Dowl. P. C. 439.
5 Homer v. Ashford, 3 Bing. 322. 6 Ibid.
1 See Tallis v. Tallis, 1 El. & B. 397, n.; 18 Eng. Law & Eq. 162, where Lord Campbell said: "The law relating to contracts in restraint of trade has been altered by late decisions. For many years the contract was void, unless the consideration was adequate to the restriction. According to Parker, C. J., in Mitchel v. Reynolds, 1 P. Wms. 181, the court was to see that it was made upon a good and adequate consideration, so as to be a proper and useful contract. But in Hitchcock v. Coker, 6 Ad. & El. 438, it was held that the court had no judicial perception of the ratio of the consideration to the restriction; and that, if there was a legal consideration of value, the contract ought to be enforced without reference to the quantum of that value. Also in Mitchel v. Reynolds, 1 P. Wms. 192, it is said: ' Wherever such contract stat indiffer enter, and for aught appears, maybe either good or bad, the law presumes it prima facie to be bad.' But according to the tenor of the later decisions, the contract is valid unless some restriction is imposed beyond what the interest of the plaintiff requires; and his interest has been considered to extend very widely. In respect of time, the restriction may be unlimited, according to Hitchcock v. Coker, 6 Ad. & El. 438; and though, in respect of space, there must be some limit, yet contracts have been supported where the area of exclusion was apparently greater than the area of the plaintiff's practice. In Horner v. Graves, 7 Bing. 744, where the area of exclusion from practice as a dentist was a circle round York of the diameter of two hundred miles, in giving judgment that this was an unnecessary restriction, it is laid down: ' unless the case was such that the restraint was plainly and obviously unnecessary, the court would not feel itself justified in interfering.' And in Mallan v. May, 11 M. & W. 667, where exclusion from the practice of a dentist in London, although containing above a million of inhabitants, was held to be reasonable and valid, the court says: * It would be better to lay down such a limit as, under any circumstances, would be sufficient protection to the interest of the contracting party, and if the limit stipulated for does not exceed that, to pronounce the contract to be valid.' Applying these principles to the present case, and considering that the plaintiff's business, to which the covenant relates, is the diffusion of books published by him in the manner alleged, and thus is almost unconnected with any particular locality, we cannot find that the exclusion of the defendant from London, and from one hundred and fifty miles round the general post-office, and from Liverpool and Manchester, was unreasonable; and we are therefore of opinion that the plaintiff had a good cause of action in the breaches of contract which he has assigned." See also Lawrence v. Kidder, 10 Barb. 649. In this case Selden, J., said: " But while contracts which thus go to the restraint of trade throughout an entire State or country, are uniformly void, those which impose restraint upon it only in a particular town or district, are sometimes held valid. The principal difficulty attending the whole subject is to ascertain the precise nature of this opposition to the plaintiff.1 And ten shillings was held to be a sufficient consideration for an agreement not to keep a draper's shop in Newgate market.2 If there be no consideration, however, or if the consideration be of no real value, and merely colorable, the contract in restraint of trade, which, in itself, the law never favors, must be either a fraud upon the parties restrained, or a mere nude pact; and in either case it would be void.3