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West Virginia." The appellee filed a bill in the court below alleging that the defendants Addison C. De Haven and John A. Rowe were violating their covenants not to engage in the business of manufacturing and selling stoves, etc., and praying the court to enjoin them from continuing in the business for the period of five years from September 1, 1899. The injunction was granted as prayed for against Lyman W. De Haven, the appellant, but was refused as to the other defendants. It is conceded that the contract in question is reasonable as to time and territory, but the appellant resists the right of the plaintiff to have an injunction against him on two grounds: (1) The contract was not founded upon a sufficient consideration; and (2) the appellant is not shown to have violated the contract.

1. A contract in partial restraint of trade must, like any other contract, have a consideration to support it. A valuable consideration, however, is sufficient. The law does not impose upon a party seeking to enforce such a contract the duty of showing that the consideration is adequate. As is well said by Rogers, J., in Hind v. Holdship, 2 Watts, 104, 26 Am. Dec. 107: "It is not essential that consideration should be adequate in point of actual value. The law does not weigh the quantum of consideration, having no means of deciding on that matter; and it would be unwise to interfere with the facility of contracting, and the free exercise of the judgment and will of the parties. The law allows them to be the sole judges of the benefits to be derived from their bargains, provided there be no incompetency to contract, and the agreement violates no rule of law." In McClurg's Appeal, 58 Pa. 51, Sharswood, J., delivering the opinion, quotes approvingly from the opinion of Tindal, C. J., in Hitchcock v. Coker, 6 Ad. & Ellis, 438, as follows: "If there is no consideration, or a consideration of no real value, the contract in restraint of trade, which in itself is never favored in law, must either be a fraud upon the rights of the party restrained, or a mere voluntary contract-nudum pactum-and therefore void. But if by 'adequacy of consideration' more is intended, and that the court must weigh whether the consideration is equal in value to that which the party gives up or loses by the restraint under which he has placed himself, we feel ourselves bound to differ from that doctrine. duty would thereby be imposed upon the court, in every particular case, which it has no means whatever to execute. It is impossible for the court, looking at the record, to say whether, in any particular case, the party restrained has made an improvident bargain or not." The rule thus announced by Chief Justice Tindal has been recognized and adopted by other American courts. "Where a consideration recognized by law as being valuable is paid," says Christiancy, C. J., in Hobbard v. Miller, 15 Am. Rep. 153, "the law

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very properly allows the parties to judge for themselves of the sufficiency in value of such consideration for their contracts. We cannot, therefore, enter into the question whether the consideration was commensurate in value with the restraint imposed." In the comparatively recent case in Alabama of McCurry v. Gibson, 18 South. 806, 54 Am. St. Rep. 177, Head, J., speaking for the court, says: "It was at an early day supposed that the consideration in such cases must be adequate (that is, equal in value to the restraint imposed); but this idea has been exploded ever since the decision in Hitchcock v. Coker, 6 Ad. & E. 438, which has been repeatedly approved and followed." It is also held in numerous cases that the sale of a business is sufficient consideration for the covenant restraining the vendor from the future exercise of his trade, and that any consideration beyond this is not necessary. 24 Am. & Eng. Ercy. of Law (2d Ed.) 353. And in McCurry v. Gibson, supra, the court says: "It is settled by the authorities that the purchase by one party of the property and good will of the business of another furnishes a sufficient consideration for an agreement by the latter, in enhancement of the value of the good will, not to compete with him in the conduct of the business." These authorities dispose of the question of consideration in the present case. Here the appellee purchased the property and good will of the business from the appellant, who covenanted in the contract not to engage in the business again for a period of five years. The validity of the agreement is not attacked on the ground of fraud, accident, or mistake. By his answer it appears that the appellant unquestionably received a valuable consideration as an inducement for entering into the contract. admits that he received dividends on certain stocks received by him from the appellee as a consideration for entering into the agreement, but says that the stock "would not sell in the market at the present time for over twenty-five thousand dollars." This shows a valuable consideration for which the appellant sold the property and good will of the business, and agreed not to engage in the business again. It may be, as the answer alleges, that the consideration was, or has become, inadequate, by reason of the depreciation of the stocks received by the appellant; but, if true, it does not justify him in violating his contract. Because of the inadequacy of the consideration he has received, his bargain may be a hard one, but the law does not regard that as a sufficient reason why he should refuse to perform it. As tersely put by Black, J., in Harris v. Tyson, 24 Pa. 347, 64 Am. Dec. 661, every man must bear the loss of a bad bargain legally and honestly made.

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2. It is strenuously insisted by the appellant that he is not engaged in business in violation of his contract with the appellee. The Pennsylvania Stove Company was in

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corporated under the laws of this state on September 5, 1901, and is engaged at Ellwood, in Lawrence county, in the business of manufacturing stoves, ranges, furnaces, and kindred manufactures, and in selling the product of its manufacture in this and other states. The business of this company is the same as that of the appellee company, incorporated August 31, 1899, which purchased and is carrying on the business of De Haven & Co., Limited. It therefore appears that the Pennsylvania Stove Company and the Pittsburg Stove & Range Company, the appellee, are both corporations of this state, and competitors in the same business. The court below found that the Pennsylvania Stove Company was using the name "De Haven" in its business, was selling stoves marked with the name "De Haven," and its officers were holding themselves out to the public, in connection with the trade-name "De Haven," as successors to De Haven & Co., Limited. Lyman W. De Haven, the appellant, was the president of this company in March, 1902, and in his answer says: "About the beginning of the present year [1902] I became employed by the Pennsylvania Stove Company at a salary of $1,500 per year. My duties in said company are not confined to Pennsylvania, West Virginia, and Ohio, but I have been selling stoves for said company in Chicago, and other points in the West." Under these and other facts, the court below found-as we think, properly-that the appellant "was an employé of the Pennsylvania Stove Company, receiving a salary, and, as such employé, is engaged in the business of manufacturing ranges, stoves, and similar articles, at Ellwood City, Pennsylvania-a business similar to that carried on by the plaintiff." As shown by his answer, he was also engaged in selling the articles manufactured by the Pennsylvania Stove Company. A contract in partial restraint of trade will be sustained when it is confined in its operation to affording a fair protection to the interests of the party in whose favor it is made. It is then held to be reasonable, and not in conflict with the interests of the public. Of course, it cannot be denied that the Pennsylvania Stove Company was engaged in a business similar to that of the plaintiff. That must be conceded. It carries on its business by its employés. Presumably, they are selected by their employer by reason of their special fitness for the respective positions they fill in the service. In this way the business is carried on in competition with others engaged in similar business. The appellant, as is clearly disclosed by the evidence, not only assists in the manufacture of the articles made by the Pennsylvania Stove Company, but also in their sale in this and other states. These articles are made specially valuable by being marked by the name "De Haven," and as having been formerly made and sold by De Haven & Co.,

Limited, whose business and good will are the property of the appellee. He is there fore employed in a business similar to that of the plaintiff. His name and his former connection with the business of De Haven & Co., Limited, give him exceptional advantages in carrying on the business of his present employer in competition with the business of the plaintiff. It is apparent, therefore, that it is immaterial, so far as it affects the appellee and its business, whether the appellant is an officer or stockholder of the competing company, or whether he is an employé whose duties require him to assist in the manufacture and sale of the goods. The purpose of the contract between the parties was to protect the appellee against the capital as well as the skill and experience of the appellant in a competing business. If his contention is sustained, however, and he is permitted, as an employé, to assist the Pennsylvania Stove Company to manufacture and sell the articles manufactured and sold by his former company under the circumstances and in the way disclosed by the evidence, he is in a position to aid competition in the business, thereby injuring the appellee's business as effectually as if he were an officer or stockholder in the competing company, or was carrying on the business himself. In view of the manifest purpose of the agreement, it is therefore reasonable to conclude that, in entering into the contract under the circumstances disclosed by the evidence, the parties intended that the appellant should not only not employ his capital in a like enterprise, but should not employ his skill and experience in any capacity whatever in a business similar to that of the appellee company.

The practice of the learned trial judge in stating his findings of fact and conclusions of law is not in accordance with good equity practice. While the judge is required to answer specifically requests for findings of both fact and law, he should also find and state in connected and paragraphic form his findings of fact and conclusions of law. As said by the court in Schmidt v. Baizley, 184 Pa. 527, 39 Atl. 406, it is the usual practice in cases of this character for the court to express its findings in separate and numbered clauses, so as to present each one independently and distinctly.

The assignments of error are overruled, and the decree is affirmed.

(98 Me. 379)

INHABITANTS OF NEW LIMERICK V.

WATSON. (Supreme Judicial Court of Maine. Dec. 26, 1903.)

TAXES-PLACE OF TAXATION-STOCK MANUFACTURED, BUT NOT EMPLOYED IN TRADE WHERE STORED - "STOREHOUSE" AND "STORE."

1. A finished manufactured product, which had been entirely completed in the fall of one

year, and as to which nothing further remained to be done except to be sold when the opportunity offered, and which is stored, because not sold, until the following April, is not employed in the mechanic arts on the first day of that April, so as to come within the meaning of the first paragraph of Rev. St. 1883, c. 6, § 14, for the purposes of taxation.

2. Where starch has been manufactured in a town other than that in which the owner was an inhabitant, and was stored in the town where manufactured, until after the first day of the following April, awaiting shipment by rail out of that town as the same should be sold, no sales being made or intended to be made in that town, and all of the sales and correspondence in relation to sales being made in the town where the owner lived and conducted his business, it is not employed in trade in the town where stored, within the meaning of the section above referred to, for the purposes of taxation.

3. Held, further, that the defendant did not occupy any store or shop in the plaintiff town for the purpose of the employment of this starch in trade. While a storehouse may, under some circumstances, come within the meaning of the word "store," as used in the statute, it does not in this case, because the defendant's storehouse was not occupied by him for the purpose of employing this starch in trade in the plaintiff town. The starch was not in a store for trade, but in a storehouse for storage. (Official.)

Report from Supreme Judicial Court, Aroostook County.

Action by the inhabitants of New Limerick against John Watson. Case reported. Judgment for defendant.

Debt to recover a tax assessed for the year 1900 against the defendant, a resident of Houlton, upon 100 tons of starch manufactured and stored by him in New Limerick, Aroostook county.

The defendant was a hardware merchant in Houlton, where he resided. He also owned and operated in Aroostook county, at the time of the assessment of this tax, five starch factories, two in Houlton, one in Monticello, one in Smyrna, and one in the plaintiff town. Such factories are operated two or three months in the fall, commencing with the harvesting of the potato crop, and closing when the small and unmarketable potatoes are ground up. Such was the duration of the season at the New Limerick factory, the annual output of which was from 75 to 100 tons per year. At the end of the season the buildings were closed, and were put to no further use, unless possibly for storage purposes, until another crop had grown. Frequently the entire output is shipped at once to market, but in this particular year it remained in the storehouse until April 1st.

The only question at issue was whether the defendant was legally liable to be taxed in the town of New Limerick.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, POWERS, and SPEAR, JJ.

Don A. H. Powers and Jas. Archibald, for plaintiff. A. W. & J. B. Madigan, for defendant.

WISWELL, C. J. The defendant, an inhabitant of the town of Houlton on the 1st day of April, 1900, was the owner of a quantity of starch which on that day was stored within the limits of the plaintiff town. This starch was taxed to the defendant by the assessors of the town wherein it was stored, and this suit is brought to recover that tax. The only question involved in the case, which comes to the law court upon a report of the evidence, is whether or not this personal property was taxable in the plaintiff town under the facts of the case.

The general provision of law in regard to the taxation of personal property is that it "shall be assessed to the owner in the town where he is an inhabitant on the first day of each April." To this general rule, however, there are various exceptions, some of which are stated in the first paragraph of Rev. St. 1883, c. 6, § 14, as follows: "All personal property employed in trade, in the erection of buildings or vessels, or in the mechanic arts, shall be taxed in the town where so employed on the first day of each April; provided, that the owner, his servant, sub-contractor or agent, so employing it, occupies any store, shop, mill, wharf, landing place or ship yard therein for the purpose of such employment." It is contended by the plaintiff that the personal property taxed came within these exceptions.

The facts, about which there is no dispute, are these: The defendant, on April 1, 1900, and for some time prior thereto, including the preceding year, was the owner and in occupation of a starch factory in the plaintiff town, the plant consisting of a mill, two dryhouses, and a storehouse. In the early part of September, 1899, he commenced therein the manufacture of starch from potatoes, the process of manufacture lasted some seven weeks, and, after it was completed and the starch dried, the finished product, about 100 tons, was stored in the storehouse to await shipment. Not being sold, it remained there until after the 1st day of April of the year in which the tax was assessed. The defendant was in business in the town of Houlton, having there, in addition to a store, an office where all of his books and accounts were kept, and where all of the business in connection with the sales of starch manufactured at this factory, as well as at others which he operated, was transacted. Here all of the sales of starch were made, and all of the correspondence conducted in relation to such sales. None of this starch was intended to be sold in New Limerick, and none of it was in fact sold there. It was simply stored there, after its manufacture, to be shipped from the storehouse as sales were made by the defendant in his office at Houlton, or by correspondence conducted there.

While the precise meaning of the phrase "employed in the mechanic arts" may be somewhat obscure, we think it is clear that a finished manufactured product which had

been entirely completed in the fall before, and as to which nothing further was to be done except to be sold when the opportunity offered, and which is kept, because unsold, until the following April, cannot be said to be employed in the mechanic arts on the 1st day of April, within the meaning of that phrase of the statute.

Neither do we think that it can be said that this starch was employed in trade in New Limerick, within the meaning of the statute. It was not there employed in trade. It was not exposed for sale; it was neither intended to be sold, nor was it in fact sold, to customers in that town; no contracts for sale ever had been or were to be made there; it was not in any store in New Limerick for the purpose of sale or trade there, but was simply stored in a storehouse awaiting shipment after contracts for its sale were made elsewhere. Although kept in that town, it was entirely employed in trade elsewhere.

The previous decisions of this court, wherein this statute has been considered and construed, and which are cited by the plaintiff, are not in point. In Ellsworth v. Brown, 53 Me. 519, the question was whether logs which were intended to be manufactured and sold in a town in which the owner occupied a mill at which the logs were to be sawed, he being an inhabitant of another town, were taxable in the town where they were to be manufactured, although the logs had not arrived within the limits of that town on the 1st day of April of the year for which the tax was assessed. And in Farmingdale v. Berlin Mills Co., 93 Me. 333, 45 Atl. 39, precisely the same question was presented, although under a somewhat more favorable statute in that respect.

In Gower v. Jonesboro, 83 Me. 142, 21 Atl. 846, the personal property taxed was firewood that the owner had caused to be hauled to a landing place occupied by him within the limits of the town in which the tax was assessed. This wood, as found by the court, was "to be sold or disposed of either in small quantities or by the whole lot, as might be found expedient," and was to be sold to local or other parties as might thereafterwards be found expedient, and was in fact so sold as opportunity was offered. The distinction between the facts of the case now being considered and those of the case last cited is apparent.

The case of Huckins v. Boston, 4 Cush. 543, and Hittinger v. Westford, 135 Mass. 258, in both of which questions arising under a very similar statute were considered, and in which the decision was against the right to tax the property in the towns where the property was stored, approach more closely the question involved in this case. These cases were cited by this court in the opinion in Martin v. Portland, 81 Me. 293, 17 Atl. 72, where the same conclusion was reached. Nor do the facts of this case bring it within the proviso of the statute which we have 57 A.-6

been considering. It is necessary, before personal property can be taxed in a town other than that in which the owner is an inhabitant, that he should occupy in that town, so far as this case is concerned, a mill for the employment of such property in the mechanic arts, or a store for the purpose of its employment in trade. True, the defendant occupied a starch factory or mill, but we have already seen that this starch was not employed in the mechanic arts on the 1st day of April, 1900. He did not occupy any store or shop in the plaintiff town for the purpose of the employment of this starch in trade. While a storehouse may, under some circumstances, come within the meaning of the word "store" as used in the statute, it does not in this case, because this storehouse was not occupied by him for the purpose of employing this starch in trade in that town. It was not in a store for trade, but in a storehouse for storage. See Hittinger v. Westford, supra.

Judgment for defendant.

MORROW v. MOORE.

(98 Me. 373)

(Supreme Judicial Court of Maine. Dec. 26, 1903.)

CONTRACTS-SALE OF REAL ESTATE-STATUTE OF FRAUDS-DEED NOT DELIVERED-VENDOR AND PURCHASER-RIGHTS AND LIABILITIES

RESCISSION-CHECK-CONSIDERATION.

1. A contract for the sale of real estate, wholly oral, does not become enforceable by reason of the fact that the vendor has signed a deed in accordance with the oral contract, so long as that deed remains in his possession or under his control; and it is equally under his control while it is in the possession of his attorney. Nor does the signing of a deed of land agreed to be conveyed, and its being sent to the attorney of the person signing, constitute a memorandum in writing which will satisfy the statute of frauds.

2. Although the owner of real estate may have determined to sell his property at a certain price, he is under no obligation to communicate that fact to a prospective purchaser, but may obtain a larger price if the purchaser is willing to pay it. Where there is no obligation upon a vendor to inform a purchaser of a fact, it is not a fraudulent concealment to withhold information in regard thereto.

3. Held, that the facts in this case do not disclose that the check in suit was obtained by the plaintiff by means of any fraudulent misrepresentations or fraudulent concealments of material facts, and that the evidence shows a sufficient consideration for the check in suit. (Official.)

Report from Supreme Judicial Court, Somerset County.

Action by William S. Morrow against Arthur E. Moore. Case reported. Judgment for plaintiff.

This was an action of assumpsit to recover $189, the amount of a check given the plaintiff by the defendant on March 6, 1902, as part of the purchase price of a piece of

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1. See Frauds, Statute of, vol. 23, Cent. Dig. §

land situated in Madison, Somerset county, sold by the plaintiff to the defendant.

The defendant pleaded the general issue, and a brief statement setting out that the check was obtained by deceit, concealment of material facts, and fraud practiced on the defendant by the plaintiff.

Argued before WISWELL, C. J., and EMERY, STROUT, SAVAGE, PEABODY, and SPEAR, JJ.

Forrest Goodwin, for plaintiff. S. J. & L L. Walton, for defendant.

WISWELL, C. J. Action of assumpsit upon a bank check given by the defendant to the plaintiff. The defense is a want of consideration, and that the check was obtained by the plaintiff by means of fraudulent misrepresentations and a fraudulent concealment of a material fact. The case comes to the law court upon a report of the evidence.

The check in suit was given as a part of the following transaction: The plaintiff, who lived in the state of Connecticut, owned real estate, consisting of a lot of land and the buildings thereon, in the village of Madison, in this state. The defendant, being desirous of purchasing this property, after some correspondence with the plaintiff, sent his father to Connecticut to see the plaintiff and negotiate for its purchase. The father went, saw the plaintiff, informed him of his errand, inquired the price of the property, and, after various offers made by the one side and the other, they agreed upon a sale and purchase of the property for the sum of $3,750, in addition to which the purchaser was to pay the amount of an insurance premium recently paid by the plaintiff; making in all the sum of $3,786. It was further agreed at the time that the plaintiff should have the deed drawn by Mr. Small, an attorney at Madison, sent to the plaintiff for the signatures of himself and wife, and then returned to the attorney at Madison, to be delivered by him to the defendant upon the payment of the purchase price; this method of carrying out the transaction being suggested and insisted upon by the plaintiff a matter of some importance, as showing the position and relation of Mr. Small to the parties.

Shortly after this the plaintiff wrote two letters to Mr. Small, directing him to draft the deed, informing him of the purchase price, giving him certain instructions in regard to an existing lease upon a portion of the property, and saying that he should expect him to look out for his (the plaintiff's) interests in the matter. The deed was drafted by Mr. Small according to instructions, and sent to the plaintiff for the signatures of imself and wife, and for acknowledgment, but by that time the plaintiff had concluded not to sell the property at the price agreed upon, and so informed the defendant by letter. Thereupon the defendant started for

Connecticut, saw the plaintiff, and finally a new trade was concluded between them, whereby the defendant was to pay the sum of $3,975 for the property. This amount was made up by calling the purchase price $4,000, but an allowance of $25 was made to the defendant on account of his traveling expenses. Then and there the defendant gave the plaintiff the check in suit, for $189, and agreed to pay the balance of $3,786 to Mr. Small, in Madison, upon the delivery of the deed.

This was on March 6, 1902; but in the meantime, on March 4, 1902, the plaintiff had again changed his mind, and concluded to carry out the first trade-to sell for $3,786— and had forwarded the deed, signed by himself and wife, and duly acknowledged, to the attorney in Madison, with instructions to deliver the same upon the receipt of the above sum. The defendant left Madison for Connecticut upon the morning of March 5th -the same day, but before, this last letter from the plaintiff was received by Mr. Small

and without any knowledge of this letter. The defendant claims that he had no knowledge of the fact that the plaintiff had concluded to carry out his first trade, and to sell the property for the sum of $3,786, until after the second trade was made, and he had given his check for $189 in pursuance thereof, and that the plaintiff then first informed him that he had already sent the deed to Mr. Small, to be delivered upon the payment of the sum first agreed upon. After more or less controversy between the parties, arising out of the information then, as he claims, first obtained, the defendant started for home, and while on the way directed payment upon this check to be stopped, by a telegram to the bank upon which it was drawn.

But notwithstanding this, the defendant, upon his return home, carried out the trade for the purchase of the property, by paying to Mr. Small the sum required, $3,786, and by receiving delivery of the plaintiff's deed.

There is no great conflict in the testimony about these facts, except that the plaintiff claims that this information in regard to the deed having been sent to Mr. Small for delivery was given to the defendant before the check in suit was drawn by the plaintiff and given him. But we think that this conflict is immaterial, and that it is not necessary to determine the issue of facts thus raised, because, assuming that the defendant's position in that respect is the correct one, and that he had no knowledge of this fact until after the check had been given, it does not constitute a defense to this suit upon the check.

The first contract between the plaintiff and the defendant's father, acting for the latter, was wholly oral, and, being for the sale of lands, was not enforceable, under our statute. The plaintiff had a legal right to refuse to carry out the terms of that unenforce

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