Me.) ANDERSON v. EASTERN COUPLING CO. 167 The first week in May, 1911, the defendant as a servant of a business rival of the plainentered into the employment of one Joseph tiff, and by being in the employment of a F. Stephenson, who was engaged in the truck- rival undoubtedly may influence, to a greating business in Portland, being a business er or less extent, some of his former cussimilar to that sold by the defendant to the tomers, who should now be the customers of plaintiff. The defendant was employed as a the plaintiff, to employ the rival of the plainlumper, assisting teamsters of Stephenson in tiff. It is but just that the parties to an loading and unloading the teams engaged in agreement of this kind, entered into for a the trucking business. He had been so em- valuable consideration, should not only live ployed for about two weeks, when the plain- up to the letter of the agreement, but also tiff brought this bill in equity, asking that he to its spirit. It is so easy for one indirectly, be "enjoined and restrained, during the pen- by word or conduct, to utterly destroy the dency of the suit and during the remainder good will of a business which he has sold, of the term of five years yet to elapse, as and which another in good faith has purspecified in said agreement, from carrying chased, adequate damages for which, owing on, either alone or jointly with or as agent to the rules of law governing the assessment or servant of any person or persons, or agent, of damages, cannot be awarded, that equity director, or servant of any other company, carefully scrutinizes the conduct of the seller, or otherwise, directly or indirectly, to assist in carrying on any business of a similar nature to the business transferred by him to the plaintiff at said Portland." [1] It is customary and oftentimes necessary that a person purchasing the business of another, with the good will that should follow the transaction, enters into an agree ment with the seller, whereby the seller is restricted from engaging in a similar business within specified districts. If these agreements are not made, the seller, if he sees fit, can immediately begin business upon his own account, or in the employment of a rival of the purchaser, and completely destroy the good will which he has sold, and for which he has received a valuable consideration. and if, directly or indirectly, he so conducts This the defendant has not not sanction such conduct. The defendant should, neither directly nor indirectly, violate his agreement. When an agreement of this kind is made for a sufficient consideration (which is not questioned in this case), the parties are bound by it, and cannot do indirectly what they have it, and cannot do indirectly what they have no right to do directly. As said by this court in Emery v. Bradley, 88 Me. 357, 34 Atl. 167, which was a bill in equity asking for an injunction restraining the defendant from remaining in the employment of his son as a photographer, he having previously sold out his photograph business to the plaintiff, and agreed to do no more of that business in the town: "The spirit of the agreement requires that he (defendant) should not compete in ANDERSON v. EASTERN COUPLING CO. the business with the plaintiff, either direct ly in his own name or indirectly as clerk or Bill sustained, with cost. Injunction to issue as prayed for. (108 Me. 374) (Supreme Judicial Court of Maine. Oct. 5, 1911.) RER. A demurrer admits all facts well pleaded. [Ed. Note.-For other cases, see Pleading, other_cases, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*] 2. PLEADING (§ 205*)-GENERAL DEMURRER→→ SCOPE. agent of some one else." And in the case of 1. PLEADING (§ 214*)—ADMISSION BY DEMURWhitney v. Slayton, 40 Me. 224, the defendant had sold his business of manufacturing iron castings, and given a bond not to engage in the iron casting business within 60 miles of the place where the business was located, and he afterwards became a stockholder in a corporation engaged in the manu- of substance, and waives all matters of form. A general demurrer reaches only matters facture of iron castings in the same place. The court held that by becoming a stockhold-Cent. Dig. §§ 491-510; Dec. Dig. § 205.*] [Ed. Note.-For other cases, see Pleading, er in the corporation he had violated the conditions of his bond, as he also had by being 3. PLEADING (§ 204*)-GENERAL DEMURRER— in the employment of the corporation. If a declaration contains one good count, SCOPE. [2] In this case the defendant is employed or one good assignment of a breach of an agree *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes ment declared upon, a general demurrer must be overruled. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 486-490; Dec. Dig. § 204.*] 4. PLEADING (§ 205*)-GENERAL DEMURREROBJECTION FOR DUPLICITY. Objection to a declaration for duplicity can be taken advantage of by special demurrer only. [Ed. Note. For other cases, see Pleading, Cent. Dig. 503; Dec. Dig. § 205.*] ment of royalties to be made on October 1st. And the declaration avers that the royalties were to be paid at the expiration of 90 days after the date of said agreement, which would be on September 28th, or two days before October 1st. (2) That the declaration is not definite as to the damages claimed, or cause of damages. (3) That the declaration also contained two counts in one, and is therefore bad for 5. PATENTS ($219*) - ROYALTIES-ACTION-duplicity. PLEADING SUFFICIENCY. A declaration, setting out an agreement by defendant to pay, on October 1, 1909, patent royalties on all goods manufactured by or for it during the preceding 90 days, and alleging that plaintiff has performed his undertakings, that defendant has manufactured large quantities of goods mentioned in the agreement, and thereby became liable to plaintiff for the payment of royalties as fixed by the agreement, that defendant, though requested, has neglected and refused to pay, the date of the writ being long after October 1st, sufficiently alleges perform ance by plaintiff and breach by defendant, as against general demurrer. [Ed. Note.-For other cases, see Patents, Dec. Dig. § 219.*] Exceptions from Supreme Judicial Court, Knox County. Action by Gustaf A. Anderson against the Eastern Coupling Company. From an order overruling a demurrer to the declaration, defendant brings exceptions. Exceptions overruled, and judgment for plaintiff. Assumpsit on a written contract to pay royalties for the right to manufacture and sell invented articles under the plaintiff's patent. The defendant filed a general demurrer to the declaration. The demurrer was overruled, and the defendant excepted. It was stipulated in the bill of exceptions that if the exceptions were overruled judgment should be entered for the plaintiff for $500. Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, BIRD, and HALEY, JJ. M. T. Crawford and Reuel Robinson, for plaintiff. J. H. Montgomery, for defendant. HALEY, J. This is an action of assumpsit on a contract to pay royalties for the right to manufacture and sell invented articles under plaintiff's patent. The contract between the parties is in writing, and is set out in full in the declaration. The defendant filed a general demurrer to the declaration. [1-3] The demurrer admits all facts well pleaded. The demurrer being general, it reaches only matters of substance, and waives all matters of form, for the rule is well established that matters of form and duplicity in pleading can be taken advantage of on special demurrer, but not on general demurrer, and that if the declaration contains one good count, or one good assignment of the breach of the agreement declared upon, that the demurrer must be overruled and the declaration adjudged good. "It expressly allows several breaches of the same contract or duty to be assigned; for otherwise the plaintiff would be preclud ed from recovering damages to the full extent of the injury, or the defendant would not be sufficiently apprised by the declaration of the extent of the claim he would have to answer." Chitty, Plead. 228; Oliver's Precedents (4th Ed.) 155. [4] The demurrer being general, the objection of duplicity cannot prevail, for that can only be taken advantage of on a special demurrer. Blanchard v. Hoxie, 34 Me. 376; Briggs et al. v. Railway Co., 54 Me. 375; Neal v. Hanson, 60 Me. 84; Bank v. Abell, 63 Me. 346; Concord v. Delaney, 56 Me. 201; Dexter Sav. Bank v. Copeland, 72 Me. 220. [5] The declaration sets out the agreement, wherein the defendant promised to pay, on October 1, 1909, royalties on all of the goods manufactured by it or for it, as authorized by said agreement, during the preceding 90 days, according to the schedule which is set forth in said declaration. The declaration further avers that the plaintiff has performed each and every undertaking by him to be performed, and that the defendant has manufactured large quantities of the goods mentioned in the schedule, and thereby became liable and indebted to the plaintiff for the payment of royalties as specified and fixed The defendant contends that the allegation by the terms of said agreement and schedule, in the declaration varies from the terms of with the usual averment that the defendant, the contract as set forth in the declaration: although requested, has neglected and refus(1) Because the agreement purports to ed to pay; the date of the writ being long have been made and entered into on the 1st after October 1, 1909. This is a sufficient day of July, 1909, wherein the defendant allegation of performance by the plaintiff, agreed to pay the plaintiff the royalties for and a sufficient assignment of one breach by which this action is brought on all hose and the defendant. If the defendant had desired nozzle couplings, and on all nozzles manu- a more particular statement of what the factured by it or for it, or manufactured by plaintiff would attempt to prove under the its or for its assigns or legal representatives, breach, he should have asked for a bill of during the preceding 90 days; the first pay-particulars, or demurred specially. The dec Me.) LORD v. JONES 169 laration, containing a sufficient allegation | case comes up on report. The plaintiff seeks of performance by the plaintiff, and one, at least, sufficient assignment of a breach by the defendant, is good upon general demurrer, and by the stipulation of the parties the plaintiff is entitled to judgment for $500. Exceptions overuled. Judgment for plaintiff for $500, as stipulated. (108 Me. 381) LORD V. JONES. to take the note out of the apparent bar of the statute by proving an acknowledgment or new promise. The plaintiff relies upon a letter dated May 6, 1910, written and signed by the defendant, and sent by him to the plaintiff. The body of the letter, so far as material, is as follows: "I was at your place Sunday, but you were not there. I have some money due me in a number of places, but I couldn't collect in any. I rode Saturday night till 10 o'clock. Now, can't I fix it with (Supreme Judicial Court of Maine. Oct. 9, you by giving you my note for the amount, 1911.) The defendant, who was the maker of a promissory note dated June 9, 1900, on May § 6, 1910, wrote to the plaintiff, who was the holder of the note, a letter which contained the following: "I was at your place Sunday, but you were not there. I have some money due me in a number of places, but I couldn't collect in any. * * ** Now, can't I fix it up with you by giving you my note for the amount, and then I will take it up as soon as I can, and I will do it before October 1st." The statute of limitations having been pleaded as a bar to a suit on the note it is held that it was competent for the plaintiff to show that the letter referred to the note, by showing that he had no other claim against the defendant. [Ed. Note. For other cases, see Limitation of Actions, Cent. Dig. § 718; Dec. Dig. § 196.*] 2. LIMITATION OF ACTIONS ( 148*)-TOLLING STATUTE EVIDENCE. To take an indebtedness, otherwise barred. out of the statute of limitations by an acknowledgment in writing, it must appear that the acknowledgment was made under such circumstances and in such terms as reasonably and by fair implication to lead to the inference that the debtor intended to renew his promise of payment, and thus make a new and continuing contract. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 597-603; Dec. Dig. 8 148.*] 3. LIMITATION OF ACTIONS (§ 148*)-TOLLING STATUTE-NEW PROMISE. The letter was a sufficient acknowledgment of the indebtedness to take the note out of the statute of limitations. * and then I will take it up as soon as I can, home." It is provided by Revised Statutes, c. 83, 100, that "no acknowledgment or promise takes the case out of the operation hereof, unless the acknowledgment or promise is express, in writing and signed by the party chargeable thereby." [1] It is clear enough from the oral testimony in the case that by the expression in the letter, "Can't I fix it," the defendant was referring to the note in suit, and that the defendant was not indebted to the plaintiff for anything else. But the defendant insists that the identity of the subject-matter must appear in the letter itself, and cannot be shown by extrinsic oral evidence. But we think the point cannot avail the defendant. The letter on the face of it evidently refers to some claim or demand which the plaintiff had against the writer, and to a single claim. We think it was competent for the plaintiff to show, as he did, that he had no other claim than the note in suit. And, if so, the word "it," in the phrase "Can't I fix it" necessarily referred to that note. In Bailey v. Crane, 21 Pick. (Mass.) 323, a case cited by the defendant, the court, after stating the undoubted rule that an acknowledg ment, to take a debt out of the statute, must satisfactorily appear to refer to the very debt in question, said also, with reference to the facts in that case: "As the defendant has not shown that there was any other debt due from him to the plaintiff, his letter must be presumed to apply to the note in suit." Report from Supreme Judicial Court, York And the court in the recent case of Cotulla County. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. §§ 597-603; Dec. Dig. § 148.*] v. Urbahn, 135 S. W. 1159, approved the same doctrine, saying that, "if there is only one transaction, a reference to the debt is sufficient as to its identity." [2] The defendant also challenges the sufficiency of the acknowledgment. It is sometimes stated, somewhat loosely, that E. P. Spinney, for plaintiff. Frank Wil- an unqualified acknowledgment of a debt son, for defendant. as an existing debt is sufficient. But the rule is more aptly stated in Krebs v. Olmstead, 137 Mass. 504, where the court said that the plaintiff may take a case out of the statute "by showing an acknowledgment in writing by the defendant that the debt was SAVAGE, J. This is an action upon a promissory note dated June 9, 1900. The action was commenced August 30, 1910. The defense is the statute of limitations. The *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes the amount of the limitation, is not authorized. BY GOVERNOR-TIME. 4. STATUTES (§ 30*)-ENACTMENT-SIGNATURE The Legislature having adjourned, the bill cannot be re-engrossed and presented to the Governor for signature. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 32; Dec. Dig. § 30.*] due, made under such circumstances and in | become valid law, and that expenditure, even to such terms as reasonably and by fair implication to lead to the inference that the debtor intended to renew his promise of payment, and thus make a new and continuing contract." And the court added: "It is not enough to prove an admission of the debt, if it is accompanied by circumstances which repel such inferences, or leave it in doubt whether the debtor intended to make a new promise." See, also, Wald v. Arnold, 168 5. STATUTES (§ 26*)-ENACTMENT-SIGNATURE BY GOVERNOR-NECESSITY. Mass. 134, 46 N. E. 419. The same principle Under Const. pt. 2, art. 43, requiring preswas stated by this court in Johnston v. Hus-entation of legislative bills to the Governor for sey, 89 Me. 488, 36 Atl. 993, in these words, approval, his approval, attested by his signa"The acknowledgment must also at least savor ture, is as essential to a valid enactment as its of a promise to pay," and, "It must show a passage by the Legislature, excepting acts which recognition of a legal obligation, and an in- may be enacted without his approval. [Ed. Note.-For other cases, see Statutes, tention, or at least a willingness, to be bound Cent. Dig. § 28; Dec. Dig. § 26.*] by it." When such an acknowledgment is 6. COURTS (§ 208*)-SUPREME COURT-OPINshown, the law will imply a promise to pay. IONS TO GOVERNOR-SCOPE. Johnston v. Hussey, supra;. Bailey v. Crane, supra. [3] We think the defendant's letter in this case falls within the principle thus stated. It would be drawing altogether too fine a point to say that it was not a distinct recognition of the note as an existing debt, and the defendant expressed a willingness to pay it. He proposed to give a new note for the old one, and expressly promised to pay the new note before a time certain. That would be payment. Accordingly we hold that the statute of limitations is not a bar to this action. Judgment for the plaintiff. (76 N. H. 601) In re OPINION OF THE JUSTICES. (Supreme Court of New Hampshire. Oct. 4, 1911.) 1. STATUTES (§ 286*)-ENACTMENT-VALIDITY. That an act is found in the Secretary of State's Office, signed by the Speaker, the President of the Senate, and the Governor, is not conclusive of its due enactment, the legislative journals under the Constitution being treated as authentic records of the proceedings; and if they show that the act was not passed by both branches it is invalid. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 386; Dec. Dig. § 286.*] 2. COURTS (§ 208*)-SUPREME COURT-OPINIONS TO GOVERNOR-SCOPE OF REVIEW. In reaching conclusions in opinions given on application of the Governor and the Council, the Justices of the Supreme Court cannot receive evidence or determine questions of fact. [Ed. Note. For other cases, see Courts, Cent. Dig. §§ 492, 493; Dec. Dig. § 208.*] 3. STATUTES (§ 39*)-ENACTMENT-VALIDITY. The bill for an act of 1911 (Laws 1911, c. 130), to acquire land for a forest reservation and state park, was amended in the House so as to strike a limitation on the expenditure, but the words were not actually stricken; memorandum of the amendment being attached to bill. The memorandum was overlooked by the Senate and the Governor, and the bill was engrossed as containing the limitation. Held that the clause limiting the expenditure did not Ordinarily the Justices of the Supreme Court will not give an opinion to the Governor and the Council on a question involving private rights; it being properly adjudicated in a suit to which the persons affected are parties. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 492, 493; Dec. Dig. § 208.*] Application by the Governor and the Council for an opinion of the Justices concerning an act to acquire land as a forest reservation and state park. Questions answered. To the Justices of the Supreme Court: The Governor and fhe Honorable Council respectfully represent that on March 16, 1911, an act entitled "An act to provide for the acquisition by the state of the Crawford Notch, so called, in IIart's Location and contiguous territory, as a forest reservation and state park," was reported by the committee on appropriations to the House. Section 3 of this bill provided: "For the purPose of carrying out the provisions of this act, such a sum as may be necessary, not to exceed one hundred thousand dollars ($100,000), is hereby appropriated and shall be provided in the manner following: The state treasurer, under the direction of the Governor and Council, shall issue scrip or certificates of indebtedness to such amounts as may be necessary to pay for the lands. Wood, and timber purchased or condemned as aforesaid, not exceeding in the aggregate the amount aforesaid." The House voted to amend said section by striking out the words "not to exceed one hundred thousand dollars," and to further amend said section by striking out the words "not exceeding in the aggregate the amount aforesaid," and passed the bill. The clerk of the House messaged the bill into the Senate, and, instead of striking out the words above named on the face of the bill, he pasted a printed extract from the House Journal, showing the amendments, to the wrapper of the bill. The bill reached the Senate April 4, 1911, was read twice by its N. H.) IN RE OPINION OF THE JUSTICES 171 title, and sent to the finance committee. I the office of the Secretary of the State with April 6, 1911, that committee reported the bill to the Senate, and it was read a third time by its title, and passed unanimously. In engrossing the bill, the record attached to the wrapper of the bill was not noticed, and it was engrossed as it was when it was reported by the committee on appropriations. The engrossing committee reported to the House and Senate that they found the bill correctly engrossed. The House and Senate accepted this report, the President of the Senate and the Speaker of the House signed this bill, and it was presented to the Governor and signed by him. The Governor and Council require the opinion of the Justices upon the following questions: (1) Is this act, entitled "An act to provide for the acquisition by the state of the Crawford Notch, so called, in Hart's Location and contiguous territory, as a forest reservation and state park," approved April 12, 1911, a valid law? (2) If in your opinion the bill as engrossed and signed by the Governor is not the one which passed the House and Senate, can the Governor and Council pledge the credit of the state to the extent of $100,000 to carry the bill into effect? (3) If no part of the act is now the law, may the act be correctly engrossed now and presented to the Governor for his signature? (4) If the record is conclusive that the act as signed by the Governor passed the House and Senate, can the lands specified in said bill be acquired by the exercise of eminent domain, if the owners of said lands ask therefor a sum greatly in excess of the one hundred thousand dollars specified in said bill? Robert P. Bass, Governor. Thomas Entwistle, Benjamin F. Greer, John M. Gile, other public acts passed at the same session, signed by the Speaker of the House of Representatives and the President of the Senate, with the approval of the Governor attested by his signature thereon, was not conclusive evidence of its due enactment; but that, in view of provisions of the Constitution in reference to them, the journals of the two houses are to be treated as authentic records of the proceedings, and that, if it appears from these records that the act in question was not passed by both branches of the Legislature, the prima facie evidence furnished by the enrolled act would be overcome, and the act held invalid. Opinion of the Justices, 35 N. H. 579; Opinion of the Justices, 45 N. H. 607; Opinion of the Justices, 52 N. H. 622. In view of the entire unanimity of opinion extending over so long a period of time, participated in by so many different members of the court, and apparently accepted and acquiesced in by the bar and the state, we may properly adopt as our own, without further discussion, the views upon this question expressed by our predecessors in 1858, approved by them in 1864, and reaffirmed in 1873. [2, 3] In reaching the conclusions contained in opinions of this character, the Justices are not authorized to receive evidence or to determine questions of fact. Opinion of the Justices, 70 N. H. 638, 50 Atl. 328; Opinion of the Justices, 45 N. H. 607, 608, 614. Assuming, therefore, that the Journal of the House shows the fact stated in your communication-that certain provisions of the act now published as chapter 130 of the Laws of 1911, found in the act as enrolled and published, were stricken from the act by amendment in the House before its passage by that branch of the Legislature-the provisions so stricken out are not law. Our answer, therefore, to the first question submitted is that, in our opinion, chapter 130 of the Laws of 1911 is not in its entirety, as published, a valid law. We see nothing in the facts stated as to the proceedings in the Senate which would authorize the finding that the act which passed the House did not duly pass the Senate. The Senate are In response to your inquiries relating to authorized by the Constitution to "determine the validity of an act entitled "An act to their own rules of proceedings." Part 2. provide for the acquisition by the state of art. 36 (37). There is nothing in the Conthe Crawford Notch, so called, in Hart's Lo-stitution prescribing the method which the cation and contiguous territory, as a forest reservation and state park," approved by the Governor April 12, 1911, and your powers thereunder, the undersigned, the Justices of the Supreme Court, respectfully answer as follows: George H. Turner, Concord, N. H., August 4, 1911. To His Exellency the Governor, and the Hon orable Council: [1] Upon three occasions, the first over 50 years ago, the Justices of this court, in performance of their constitutional duty upon the requirement of each branch of the Legislature or the Governor and Council, have joined in expressing the opinion that the fact that an act was found lodged in Senate must adopt to acquaint themselves with the contents of any proposed measure before its passage. Our attention is called to section 3 of the act, which appears to have been drafted for the purpose of appropriating money to carry out the purposes of the act, and to provide the same by authorizing the State Treasurer, under the direction of the Governor and Council, to issue scrip or certificates of indebtedness therefor. The second question asked, whether the Governor and Council can "pledge the credit of the state |