§ 681. The limitations of such a contract must be reasonable in regard both to time and to place. The test of the reasonableness of any restriction is, whether it is such as only affords a fair protection to the party in whose favor it is made, and at the same time does not militate with the public interest. If it be greater than is necessary to insure the protection of the party, it is oppressive, and therefore unreasonable.4 Thus, a contract entered into by a practising attorney, for a valuable consideration, that he would relinquish and make over to B. & G., two other attorneys, his business of attorney, so far as respected his professional practice in London, and one hundred and fifty miles from thence, and that he would not practise as an attorney within those limits, was holden to be valid, although there was no limitation of time.5 So, also, an agreement not to run a stage-coach between Providence and Boston, in oppoexception to the general rule, and the reasons upon which it is founded. In many of the early cases the language of the courts would seem to imply that the adequacy or extent of the consideration had something to do with the validity of the contract. They say that a mere pecuniary consideration is not sufficient; that there must be something, although it does not appear very clearly what, added to this to support the contract. This idea, however, of the necessity of any greater or other consideration for a contract of this description, than any other, was obviously unfounded, and has been exploded by the recent cases. Hitchcock v. Coker, 6 Ad. & El. 438; Green v. Price, 13 M. & W. 698."
1 Pierce v. Fuller, 8 Mass. 223.
2 Bragg v. Tanner, cited Cro. Jac. 597. See also Stearns v. Barrett, 1 Pick. 443; Palmer v. Stebbins, 3 Pick. 188.
3 Hitchcock v. Coker, 6 Ad. & El. 438.
4 Horner v. Graves, 7 Bing. 735; Ward v. Byrne, 5 M. & W. 548; Green v. Price, 13 M. & W. 695; 16 M. & W. 346; Rannie v. Irvine, 8 Scott, N. R. 674; 7 Man. & Grang. 969; Mallan v. May, 11 M. & W. 653; Hitchcock v. Coker, 6 Ad. & El. 438; Lange v. Werk, 2 Ohio St. 520.
5 Bunn v. Guy, 4 East, 190, cited and recognized by Tindal, C. J., in Hitchcock v. Coker, 6 Ad. & El. 455; s. c. 1 Nev. & Per. 796.
sition to the plaintiffs stage-coach,1 and an agreement not to be interested in any voyage to the north-west coast of America, or in any traffic with the natives of that coast, for seven years, were both held to be valid.2 But an agreement prohibiting to a person the pursuit of a certain trade throughout the State of New York, has been held to be a contract in total restraint of trade, within meaning of the rule of the common law.3
§ 682. There is a distinction to be observed between restrictions as to place, and restrictions as to time. A general restriction as to place will vitiate a contract;4 but a general
1 Pierce v. Fuller, 8 Mass. 223; Hearn v. Griffin, 2 Chitty, 407. See Clark v. Crosby, 37 Vt. 188 (1864).
2 Perkins v. Lyman, 9 Mass. 522.
3 Lawrence v. Kidder, 10 Barb. 653. In this case, Selden, J., said: "The next question is, whether in passing upon contracts of this description we are to confine our views to our own State, or whether we are to look at the whole United States as constituting a single state or nation. In other words, whether the same rules are to be applied to a contract embracing the State of New York alone, as by the common law has always been applied to those embracing the whole territory of Great Britain.
"This question involves a variety of considerations, and admits perhaps of considerable discussion. But there are one or two leading ideas, which, in my view, are decisive of it. In the first place, the people of this State have no control over, or influence upon, the municipal laws of the other States. They may, if they please, impose the most burdensome restrictions upon particular trades. We cannot say, therefore, that a restraint which is coextensive with this State leaves the residue of the union open to the party to pursue unrestrained the same trade. Again, it is repugnant to the general frame and policy of our government to regard the union, in respect to our ordinary internal and domestic interests, as one consolidated nation. For all these purposes each State is a separate community, with separate and independent public interests. It is by no means the same thing to the people of this State, whether an individual carries on his trade within or without its borders. I am, therefore, of the opinion, independent of authority, that a contract prohibiting to an individual the pursuit of any trade or employment throughout the State of New York, should be regarded as a contract in total restraint of trade within the rule of the common law.
"This seems to have been the view taken by the supreme court in the case of Chappel v. Brockway, 21 Wend. 157, before referred to; although it does not appear that the point was then raised, nor did the case necessarily involve it. Judge Bronson says, that ' contracts which go to the total restraint of trade, as that a man will not pursue his occupation or carry on business anywhere in the State, are void.1"
4 Ward v. Byrne, 5 M. & W. 548; Lawrence v. Kidder, 10 Barb. 653; restriction as to time will not of itself constitute a sufficient ground to avoid it. If, therefore, the contract restrict the defendant from carrying on a trade within a space far greater than is necessary to protect the plaintiff in the enjoyment of his trade, the restriction would be considered as unreasonable, and could not be enforced. The reasonableness of the distance, prescribed by the terms of the agreement, will vary, of course, with the peculiar circumstances of each case, and must depend upon the populousness of the neighborhood, the nature of the trade or profession, and the mode in which it is carried on.1 But the fact that the agreement in restraint of trade is indefinite, in respect to its duration, will not avoid it, if, in other respects, it be reasonable. Thus, where the condition of a bond was, that the obligor, after leaving the service of the obligee, should not set up business in a shop within half a mile