Hitchcock v. Coker, 6 Ad. & El. 438; Tallis v. Tallis, 1 El. & B. 397, n.; 18 Eng. Law & Eq. 162.
1 See the remarks of Parke, B., in Ward v. Byrne, 5 M. & W. 548; Hinde v. Gray, 1 Scott, N. R. 123; Hitchcock v. Coker, 6 Ad. & El. 455; s. c. 1 Nev. & Per. 796; Horner v. Graves, 7 Bing. 735; Archer v. Marsh, 6 Ad. & El. 967; s. c. 2 Nev. & Per. 562. In Proctor v. Sargent,'2 Man. & Grang. 33, Tindal, C. J., said: " I think the rule is properly laid down in Hitchcock v. Coker, where it is said that ' where the restraint of a party from carrying on a trade is larger and wider than the protection of the person with whom the contract is made, can possibly require, such restraint must be considered as unreasonable in law, and the contract which would enforce it must therefore be void.1 Although a contract restraining a party from carrying on the business of a dentist within one hundred miles round York was decided to be unreasonable in Horner v. Graves, it does not follow that we are to hold in this case that a radius of five miles is also unreasonable. This must depend upon the population, the nature of the business, and how far it is ramified in that radius, and upon other circumstances of which we are not bound to take notice. Also, I think that when we are deciding upon the unreasonableness ©f a contract of this kind, we cannot leave out of consideration the duration of the restraint; for, although I admit that where we once hold a restriction to be unreasonable;n point of space, the shortness of the time for which it is imposed will not make It good, yet where the question is, whether the restraint is unreasonable or not, in point of space, that which would be unreasonable were it to continue for any length of time, may not be so when it is to last only for a day or two. I approve of the ruling in Ward v. Byrne, but I deny its application to the present case. I think that we cannot hold that the contract set out in this declaration is void, and that our judgment must be for the plaintiff." of the obligee, during his life, the restriction, although indefinite in point of time, was held to be good.1 So, also, where a surgeon took an assistant, who entered into a bond not to practise on his own account, for fourteen years, within ten miles of the place where the surgeon lived, the bond was held to be good.2 So, of a contract not to engage in business within sixty miles of a place named, within ten years.3 And where a special distance is stated, it is to be estimated by the shortest mode of access, if such a construction would subserve the purposes of the contract.4 The well settled rule seems to be that if a party covenants not to do an act within a certain distance of a given place, the proper mode of admeasurement is to draw a circle round such place of the radius of such distance; or, in other words, to measure the distance by a straight line upon a horizontal plane, or as the crow flies.5 Contracts in partial restraint of trade are not only valid at law but may be enforced in equity.6
§ 683. The question whether a restriction of trade is or is not reasonable, is one of law for the court, and not of fact for the jury; and the tendency in the courts has been to construe all restrictions liberally, and not strictly.7 But whenever a contract is made in restraint of trade, the burden of showing that it is valid and reasonable, and founded on a good consideration, rests on the party seeking to enforce it.1
1 Hitchcock v. Coker, 6 Ad. & El. 453; Leighton v. Wales, 3M.&W. 550; Archer v. Marsh, 6 Ad. & El. 966; s. c. 2 Nev. & Per. 562. See also Pemberton v. Vaughan, 10 Q. B. 87; Price v. Green, 16 M. & W. 346.
2 Davis v. Mason, 5 T. R. 118. See also Wallis v. Day, 2M.&W. 273.
3 Whitney v. Slayton, 40 Me. 224.
4 Woods v. Dennett, 2 Stark. 89, by Lord Ellenborough; Leigh v. Hind, 9 B. & C. 774, per Lord Tenterden, C. J., and Littledale, J. Parke, J., thought the distance should be estimated by an air-line, or "as the crow flies."
5 Mouflet v. Cole, 25 Law Times (n. s.), 839; Law R. 7 Exch. 70 (1871). The defendant covenanted with the plaintiff, to whom he had sold a public-house, that he would not engage in the business of the keeper of a public-house "within the distance of one-half of a mile of the said premises." Held (per Martin and Channell, BB.), that the distance should be measured upon the principle above stated. Held (per Cleasby, B.), that the subject-matter of the covenant should be considered, and that in this case the distance should be measured as a travelled distance from the one house to the other.
6 Guerand v. Dandelet, 32 Md. 561 (1870); Catt v. Tourle, Law R. 4 Oh. 659.
7 Mallan v. May, 11 M. & W. 653; Proctor v. Sargent, 2 Man. & Grang.
31. But see Lawrence v. Kidder, 10 Barb. 650. In this case the doctrines relating to restraint of trade are ably and elaborately considered, and Selden, J., in delivering the judgment of the court, says: "It is said in many of the cases that the contract must be reasonable; that it must not impose restrictions upon one party which are not beneficial to the other. In the leading case on the subject, referred to in all the later cases, Ch. J. Parker says, that in order to uphold a contract of this kind, it must appear ' that it was reasonable for the parties to enter into it; that it was a proper and useful contract, and such as could not be set aside without injury to a fair contractor.' Mitchel v. Reynolds, 1 P. Wms. 181. And in the late case of Chappel v. Brockway (21 Wend. 157), before cited, Judge Bronson says that, 'whatever may be the pecuniary consideration, it must appear in addition that there was some good reason for entering into the contract, and that it imposes no restraint upon one party which is not beneficial to the other.' All this, however, about the reasonableness of the contract, its benefits to the one or the other party, the inadequacy of a pecuniary consideration, etc, is obviously founded upon the erroneous idea that in regard to this species of contract, the law, not content with effectually protecting the rights of the pujblic, undertakes to extend its guardianship over the private interests of the parties concerned - to supervise their acts with a view to their own individual advantage. This notion cannot be reconciled with that uniform policy which leaves parties to make whatever contracts they please, provided no legal or moral obligation is thereby violated or any public interest impaired, nor with some of the adjudications on this particular subject. Judge Bronson himself, in Chappel v. Brockway, while he adopts the phraseology of some of the old cases, notices the fact that the cases of Pierce v. Fuller (8 Mass. 223) and Palmer v. Stebbins (3 Pick. 188) cannot be reconciled with the idea implied by that phraseology, and yet he says, that it does not appear that the court (in those cases) intended to lay down a new rule. . . . The whole doctrine on the subject may be summed up in this: that the law will tolerate no contract which upon its face goes to prevent an individual for any time, however short, from rendering his services to the public in any employment to which he may choose to devote himself; nor one which deprives any section of the country, however small, of the chances that the obligor in such contract may furnish to it the accommodation arising from the prosecution of a particular trade, unless it appear that the obligee himself intends to and can supply such accommodation.