provision was that, if any merchant refused to allow the stevedoring of any ship consigned to them to be done by the party entitled to it under the agreement, but should require any other of the parties to the agreement to do it, the party doing the work should give an equivalent to the persons so losing the stevedoring of an amount to be determined by arbitration. The Judicial Committee thought this not unreasonable. It provides in a fair and reasonable way for each party obtaining the benefit of the stevedoring of the ships to which by the contract he was to be entitled. Each party might in turn derive benefit from this clause, and one of the four firms would always get the profit of the ship stevedored, though the work might be done by another of them. As regards the merchant, also, he can have his ship stevedored by the party whom he may require to do it, at least there is no prohibition against his having it so done." Another provision in the agreement was, that the parties to it would not "undertake or be in any way concerned in or interfere in the stevedoring, either in whole or in part, of any ship or vessel consigned to any of the said persons or firms otherwise than according to the provision in that behalf herein before contained." "The covenant in such cases," said the Court, "restrains three of the four parties to the agreement from exercising their trade, without giving any profit or benefit to compensate for the restriction to either of the four, whilst the combination they have thus entered into is obviously detrimental to the public, by depriving the merchants of the power of employing any of these parties, who are probably the chief stevedores of the port, to load their ships, unless in each case they employ the one of the four to whom the ship, as between themselves, has been allotted, however great and well founded their objection may be to employ him. Such a restriction cannot be justified upon any of the grounds on which partial restraints of trade have been supported. It is entirely beyond anything the legitimate interests of the parties required, and is utterly unprofitable and unnecessary at least for any purpose that can be avowed." There must be a consideration for a contract in partial restraint of trade. It was once supposed that the consideration must be "adequate." It has, however, long been settled that the Courts will not inquire into the adequacy or sufficiency of the consideration (a). It is enough that it is not merely nominal or colourable. The restraint may be indefinite in point of time; a man may bind himself not to practise a certain trade in a district for his whole life-time (b). Indeed such agreements are very common in the case of the sales of goodwills of businesses. Yet the element of time is not wholly unimportant. When the question is whether a contract is reasonable or not in point of space, it may be material to know how long the restraint is to be in force (c). An agreement to restrain A. from exercising his trade is obviously different in substance from an agreement binding A. not to use a secret process discovered or purchased by B. ; and Courts of Equity have always prevented persons making use of trade secrets contrary to an agreement (d). Thus A., who sells a patent to B., may be bound by a promise not to divulge the process to any other person. The question sometimes arises whether a contract of service may be enforced, if the consideration be partly illegal or immoral. Suppose a person is engaged to buy spirits abroad and smuggle them into this country; it would no doubt be held that the two acts were incapable of separation, and that the whole contract was void (e). But if it be possible to separate the legal from the illegal part of the consideration. -if there be, in substance, separate considerations for separate contracts-a Court will enforce one part of the contract and reject the other. (a) Gravely v. Barnard (1874), L. R. 18 Eq. 518. (b) Hitchcock v. Coker (1837), 6 A. & E. 438; Cattle v. Tourle (1869), L. R. 4 Ch. 654. (c) Proctor v. Sargent (1840), 2 M. & G. 20. (d) Leather Cloth Co. v. Lorsont, see note (r); Bryson v. Whitehead (1822), 1 Sim. & St. 74; Best, C. J., in Homer v. Ashford (1825), 3 Bing. 322, 327. (e) Leake on Contracts, 779; R. v. Northwingfield (1831), 1 B. & Ad. 912. APPENDIX A. Cases of Mutuality. NO CONSIDERATION. Lees v. Whitcomb (1828), 5 Bing. 34, 3 C. & P. 289. Defendant signed a written agreement to the following effect: “I agree to remain with Mrs. Lees, of 302, Regent Street, for two years from the date hereof, for the purpose of learning the business of a dress-maker." No binding agreement; there being no obligation to teach, and no consideration being expressed. Sykes v. Dixon (1839), 9 A. & E. 693; 1 P. & D. 463. Memorandum of an agreement in the following terms: "I, William Bradly, of Sheffield, do agree that I will work for you and with John Sykes, of Sheffield, manufacturer of powder-flasks, at such work as he shall order and direct, and no other person whatsoever from this date henceforth during and until the expiration of twelve months, and so on from twelve months' end to twelve months' end, until I shall give the said John Sykes twelve months' notice in writing that I shall quit his service." Agreement was a nudum pactum, and could not be enforced." Williamson v. Taylor (1843), 5 Q. B. 175. Defendants, owners of a colliery, hired plaintiff to hew coals at certain rates, according to work done, and plaintiff agreed to continue defendant's servant all the time the pit should be laid off work, and, when required, to do a full day's work on every working day. Defendants not obliged to employ plaintiff for a reasonable number of working days during the term. Aspdin v. Austin (1844), 5 Q. B. 671. The plaintiff agreed to CONSIDERATION. Pilkington v. Scott (1846), 15 M. & W. 657. Plaintiffs agreed with L. that he should serve them for seven years; that he should not during that term work for any other person without the license of the plaintiffs; that it should be lawful for the plaintiffs to deduct from his wages any fines, &c.; and that the plaintiffs should have the option of dismissing him from their service on giving a month's notice or a month's wages. Held that, looking to the provisions of the agreement, there was an undertaking to employ L. for seven years. Hartley v. Cummings (1847), 5 C. B. 247; 17 L. J. C P. 84. Agreement between plaintiff and A. that A. should serve for seven years at a given rate of wages, and not work or serve any other person without master's consent; in consideration of which plaintiff agreed to pay A. 24s. per week for certain work; plaintiff to be at liberty, if A. were sick, or if A. discontinued the trade, to retain any other person in A.'s place, without paying him wages. The agreement not void for want of mutuality, or for being in unreasonable restraint of trade. R. v. Welch (1853), 2 E. & B. 357; 22 L. J. M. C. 145. R. Whittaker, in consideration of £3 lent or advanced to him by certain persons mentioned in the agreement and of wages to be paid by them, agreed to serve them and no one else, without their consent, for twelve months and during and until the expiration of three months from notice of his desire to termi NO CONSIDERATION. manufacture for the defendant cement, and the defendant, on condition of his faithfully performing the aforesaid contract, covenanted to pay the plaintiff the weekly sum of £4 during the two years following the date of the agreement, and the weekly sum of £5 during the next year following, and to receive him into partnership, &c., at the expiration of three years. Plaintiff also agreed con to instruct defendant in the art of manufacturing cement on dition that defendant should not engage in the manufacture otherwise than under plaintiff's management, or with his consent. By a deed subsequently executed, defendant covenanted with plaintiff to perform the several stipulations and agreements in the first agreement. Breach alleged that defendant wrongfully discharged plaintiff from the service of defendant, and prevented him from manufacturing cement, &c. No implied covenant to retain the plaintiff two or three years in the defendant's service, though the defendant was bound by the express words to pay the plaintiff the stipulated wages during those periods, if he performed, or was ready and willing to perform, the condition precedent on his part. The principle affirmed in the case is highly doubtful. The Courts to-day would no doubt imply a Covenant to retain. Dunn v. Sayles (1844), 5 Q. B. 685. Deed by which plaintiff covenanted that his son should serve the defendant for five years from the date of the agreement in the art of a dentist-surgeon, and attend for nine hours a day, and the defendant, in consideration of the services to be performed by the plaintiff's son, covenanted to pay certain wages. Breach that the defendant refused to permit the son to remain in his service. CONSIDERATION. nate the service. The employers agreed to pay on Saturday night in every week during the term all such wages as the articles made by Whittaker amounted to. There was a proviso that either party to the agreement might, after twelve months, give three months' notice. Held that the agreement might be enforced by magistrates under the 4 Geo. IV., c. 34, and was not void for want of mutuality (Elderton v. Emmens (1847), 4 C. B. 479; (1848), 6 C. B. 160; (1853), 4 H. of L. 624. Count in a declaration on assumpsit on an agreement that in consideration that the plaintiff had agreed to become the permanent solicitor of the defendant's company for reward, &c., the company promised to retain and employ the plaintiff as such permanent solicitor, &c. ; breach, that the company wrongfully refused to continue him in his employment as the solicitor of such company. This count not supported by proof of a resolution that plaintiff be appointed permanent solicitor to the company; 66 66 ,, permanent" meaning "no other than a general employment, as distinguished from an occasional employment in particular matters:" Wilde, C. J. Second count on an agreement that, "from January then next the plaintiff, as the attorney and solicitor of the company, should receive a salary of £100 per annum in lieu of rendering an annual bill of costs for general business transacted by him for the company as such attorney and solicitor, and should for such salary advise and act for the company on all occasions in all matters connected with the company, and he should attend the secretary and the board of directors when required." The Court of Common Pleas arrested judgment on a count for wrongful dismissal setting forth this agreement. The covenant corresponding to the breach. See, however, McIntyre v. Belcher, 32 L. J. C. P. 254; Worthington v. Sudlow, 31 L. J. Q. B. 134; and Crompton, J., in Emmens v. Elderton, 4 H. of L., p. 624. Payne v. New South Wales Coal, dc., Co. (1854), 10 Ex. 283. Defendants agreed with plaintiffs that plaintiffs should have defendants' ship-brokering business at Sydney upon certain terms, and that defendants would provide plaintiffs with free passage to that port; void, plaintiffs not being bound to serve defendants. CONSIDERATION. Exchequer Chamber reversed the judgment of the Common Pleas ; the House of Lords affirmed the judgment of the former. The company was bound to continue the relation for a year, but not bound to supply plaintiff with business as solicitor, or employ him when it had occasion to employ solicitor. Whittle v. Frankland (1862), 31 L. J. M. C. 81; 2 B. & S. 49; 5 L. T. N. S. 639. Agreement by appellant to serve the respondent exclusively until the expiration of twenty-eight days' notice, and, on the part of the respondents, to pay wages fortnightly, and not to discharge without twenty-eight days' notice; implied promise to find appellant work. Thomas v. Vivian (1873), 37 J. P. 228. T. agreed to serve V. for a year; but if V. ceased to carry on works from being unable to find ore, or from any other cause, V. to be at liberty to terminate the contract. See also Ex parte Bailey (1854), 3 E. & B. 607. |