the service of the sd A. & B., or the survor of them, or within yrs after he shl have left such service, follow, use, or

will not now be enquired into (Hitchcock v. Cotter, 6 Ad. & E. 438; Collins v. Locke, 4 App. Cas. 686); and it should appear on the face of the deed, though it may be implied (Gravely v. Barnard, 18 Eq. 518). (2) The restraint must be partial; if unlimited as to both time and place, though limited to a particular business or trade, it will, it appears on the balance of the authorities, be void by virtue of a general rule which is independent of the question of reasonableness (Davies v. Davies, 36 Ch. D. 359), unless the special nature of the subject matter itself creates a limit, as in the cases of disclosure of a trade secret, and similar cases (Wallis v. Day, 2 M. & W. 273; Leather Cloth Co. v. Lorsont, 9 Eq. 345; Nordenfelt v. Maxim-Nordenfelt, &c., Co., [1894] A. C. 535). (3) The restraint must be reasonably necessary for the protection of the covenantee (see per Tindal, C. J., in Horner v. Graves, 7 Bing. 743; and the judgments in Rogers v. Maddocks, [1892] 3 Ch. 346); what is reasonable must depend on the nature of the contract, which is usually either one of service, or for the sale of a business, or for dissolution of partnership, and on the general circumstances of the case. The following, however, are the general features of the law upon the subject: (a) A restriction such as is usual in contracts of service, confined to a particular business and to a limited area for a limited time, has never been questioned. (b) The restraint may be unlimited as to time, i.e., Limit as practically for the life of the covenantor, and need not be limited to the life to time. of the covenantee, or to such time as he shall carry on business (Hitchcock v. Cotter; ubi sup. ; Jacoby v. Whitmore, 32 W. R. 18). A limit of time may, however, be necessary in the absence of any other limit. (c) A restriction not to carry on any business at all is void, however limited as to time and place (Avery v. Langford, Kay, 663; Vernon v. Hallam, 34 Ch. D. 748; Baker v. Hedgecock, 39 Ch. D. 520; and see Perls v. Saalfeld, [1892] 2 Ch. 149, where the covenantee was made the arbiter as to whether the business competed or not). (d) A covenant not to solicit customers of the covenantee Not to must be confined to customers existing at the time of the covenant, or solicit during the period of the covenantor's service, and will be void, if extending customers. to all customers at any time (Baines v. Geary, 35 Ch. D. 154). (e) As to Limit as limits of space: the smallest space ever held to be unreasonable was that of to space. 100 miles from the covenantee's place of business (Horner v. Graves, 7 Bing. 735), but it is a matter depending on the circumstances of each case: in a solicitor's business, London and 150 miles round (Bunn v. Guy, 4 East, 190),

Not to carry on

business

at all.

nants.

in a dentist's business, London (Mallan v. May, 11 M. & W. 653), and in Divisibility sales of patented inventions, the whole of Europe, or at least the United of coveKingdom (Jones v. Lees, 1 H. & N. 189, 26 L. J. Ex. 9; Leather Cloth Co. v. Lorsont, ubi sup.), have been held to be reasonable: and there is no absolute rule against a restraint entirely unlimited as to space, if the nature of the trade requires it (Bryson v. Whitehead, 1 Sim. & Stu. 74; Rousillon v. Rousillon, 14 Ch. D. 351: Badische, &c., Fabrik v. Schott, [1892] 3 Ch. 447; Nordenfelt v. Maxim-Nordenfelt, &c., Co., [1894] A. C. 535, where the subject is discussed at length in the judgments of Lindley and Bowen, LL.JJ.); on the other hand, " in any of the towns or places in England or Scotland in which the covenantees might have been practising" (Mallan v. May, ubi sup.), and “within 600 miles from London or Westminster” (Price

carry on at afsd, or within miles thof, the profession, practice, or business of a physician, surgeon, accoucheur, or apothecary, eir in his own name, or in the name or names of any other pson or psons, & eir directly or indirectly, AND shl not durg such period, enter into the service of any pson or psons other than the sd A. & B. as assistant or orwise in, or in relon to, any such profession, practice or business as afsd within the limits afsd, and shl not durg the period afsd endeavour or attempt, directly or indirectly, to induce any pson or psons to cease from employg the sd A. & B., or the survor of them, in the way of their or his profession, practice, or business, or to induce any pson or psons within the limits afsd, so to employ any pson or psons other than the sd A. & B., or one of them. IN WITS, &c.

X.

AGREEMENT between a MANUFACTURER and a TRAVELLER with
PROVISION for an ULTIMATE PARTNERSHIP.

PARTIES, A., of, &c., manufacturer (hinafter called the employer), 1. B., of &c., commercial traveller (hinafter called

66

v. Green, 16 M. & W. 346), are instances of unduly wide limits. (4) The Courts are disposed to put a reasonable construction on a covenant which, taken literally, would be too wide (Mills v. Dunham, [1891] 1 Ch. 576; Perls v. Saalfeld, ubi sup.); and (5) Where a covenant is divisible, the part which is good may be upheld, Mallan v. May, ubi sup.; Baines v. Geary, ubi sup.; Baker v. Hedgecock, ubi sup. ; Davies v. Davies, ubi sup. ; Rogers v. Maddocks, ubi sup. A covenant not to carry on business "under a particular style or name," is sufficiently limited: Vernon v. Hallam, ubi sup. The expression, so far as the law allows," does not validate a covenant otherwise too wide: Davies v. Davies, ubi sup. As to joint and several interests of two partners in an assistant's bond, see Palmer v. Mallet, 36 Ch. D. 411. As to the effect upon such a covenant (by an employé) of a sale of the business, see Showell v. Winkup, 60 L. T. 389. As to what constitutes a breach of covenant against carrying on a particular business, see Stuart v. Diplock, 43 Ch. Div. 343; Fitz v. Iles, [1893] 1 Ch. 77. As to the above questions generally, see note to Mitchel v. Reynolds, 1 Sm. L. C. 430, and the tabular statements of decisions in the note to Avery v. Langford, Kay, 667, continued in Pollock on Contracts, p. 316. As to the effect of the wife of the covenantor carrying on the business, see Smith v. Hancock, [1894] 2 Ch. 377.

the traveller), 2. WHBY IT IS MUTUALLY AGRD as follows:

1. THE traveller shl enter into the service as traveller for him in the business of a

carried on by him at the day of

employer.

of the employer Engagemanufacturer, traveller

afsd, for the period of

ment as

yrs from for a term.

18-, (a) subjt to the genl control of the

to devote

whole time.

2. THE traveller shl devote the whole of his time, attention, Traveller & energies to the pformce of his duties as such traveller, & shl not, eir directly or indirectly, alone or in ptnp, be connected with or concerned in any other business or pursuit whatsr, durg the sd term of

yrs.

accounts.

3. THE traveller shl, subjt to the control of the employer, To keep keep pper books of acct, & make due & correct entries of the price of all goods sold, & of all transons & dealgs of & in relon to the sd business, & shl serve the employer diligently & accdg to his best abilities in all respts.

4. THE fixed salary of the traveller shl be the sum of £per week for the first yr, payable by the employer weekly from the commencemt of the sd service on the

day of

& on every succeedg Saturday, & £ per week for the second yr, & £- per week for the third yr, payable weekly in like mner, from the commencemt of such respive yrs.

Salary.

sion.

[5. THE traveller shl also be pd in addon to such fixed salary Commisa commission at the rate of £- p.c. upon the entire business returns of the employer in London & the suburbs, incldg thrin a circuit of miles' radius measured from the General Post Office, St. Martin's-le-Grand.]

commis

[6. THE amt payable to the traveller in respt of his commis- Payment of sion shl be ascertained & pd to him by qtrly paymts, at the sion. end of each period of three calr months from the commencemt of the sd service, & in the event of the death of eir of the sd pties the sd commission sh be computed & pd up to the day of such death.]

expenses.

7. THE reasble travellg expses & hotel bills of the traveller Travelling incurred in connon with the business of the employer shl be pd by the employer [borne by the sd pties in eql moieties], &

(a) The engagement of the traveller for a fixed term does not imply an agreement that the business itself shall continue for that term (Rhodes v. Forwood, 1 App. Ca. 256).

K.E.-VOL. I.

D

Partnership at the end

of term.

Arbitration.

the employer shl from week to week pay to the traveller [one half of] the sd travellg expses & hotel bills in addon to his fixed salary. The employer shl provide a horse & carriage for the use of the traveller, & in the event of any damage thto, the loss shl be borne by the pties hto eqlly.

[8. At the expiron of the sd period of yrs, the employer shl take the traveller into ptnp with him in his sd business, for the term of yrs from such expiron if both pties shl so long live, & give him one eql fourth share of the net gains & profits of the sd business for the succeedg period of yrs, & one eql third share thof after that term, the employer providg the requisite capital for carryg on the sd business, & a pper deed of ptnp shl be entd into betn the sd pties, any question as to the terms whof shl be settled by arbitron under the clause hinafter contd.]

[9. Arbitron clause. See ARBITRON.] IN WITS, &c.

Parties.

Recital.

Mutual covenants.

XI.

AGREEMENT under SEAL between a FIRM of TRADERS and an AGENT for the SALE of GOODS, PROVISIONS for PAYMENT of COMMISSION, for determining AGENCY, and for restraining AGENT from carrying on a similar BUSINESS, and other CLAUSES. A FULL form (a).

THIS INDRE made the day of betn A., agent (hinafter called the agent) of the one pt, & B., C., & D., ppals, carryg on business in ptnp togr as, under the style or firm of B. & Co., at, &c., or, "& Messrs. B. & Co., &c." (hinafter called the ppals), of the other pt. WHAS the agent has agrd to become the agent of the ppals in London for the sale of — manufactured or supplied by them upon the terms & in mner hinafter mentd: NOW THIS INDRE WITNETH, that it is hby covtd & agrd by & betn the sd pties hto as follows:

(a) As to agreements of this nature, see the Factors Act, 1889 (52 & 53 Vict. c. 45); Goodeve P. P., p. 79.

Firm to

supply

1. THE ppals shl, from time to time durg the term of yrs from the day of the date hrof (if the agent shl so long live), goods. [ship], consign, & supply at their own costs & chges to the agent with as little delay as may be after they shl have reced from him a notice or order in writg for the same (unless they shl be prevented by some just and sufft cause), such quantities & descriptions of or other goods or merchandise wch are now, or shl for the time being be manufactured or dealt in by the ppals, as the agent shl require, or, "as will keep up a sk in the hands of the agent to the value of £

2. THE agent shl, durg the term afsd, rece all such goods & merchandise as shl be consigned or supplied to him by the ppals as afsd, & shl use his best endeavours to sell & dispose of the same to the best advantage, & for the best prices that can be obtained for the same, not being less than such prices, if any, as may from time to time be fixed by the ppals, & eir for ready moy or to psons of good credit: AND shl in the meantime keep the same deposited in warehouses or other pper places, & shl twice in every yr, as hinafter mentd, duly acct with the ppals for, & pay over or remit to them all moys, bills, notes, & secs, wch shl have been reced by, or come to the hands of the agent, from or in respt of the sale or disposon of the sd goods or merchandise, after deductg the expses & allowces & other dedons hinafter mentd.

[3. In case the ppals shl at any time durg the subsistce of this agrmt from any cause whatever, fail or omit to supply the agent with such goods or merchandise as afsd within weeks after receivg a notice or order in writg from him for the same, the agent may thrupon pchase or obtain from any other pson or psons such goods or merchandise as he shl require, & wch the ppals shl so have failed to supply: PROVD that the agent shl duly acct, at the times & in mner hinafter provd, for all the net profits to arise from the sale thof, after deductg the first cost or price of the same, & expses, & such other dedons & allowces as hinafter mentd.]

To be disby agent. posed of

Proceeds to

be remitted half-yearly.

Provision sion to sup

for omis

ply goods.

4. THE ppals shl allow or pay to the agent so long as he Expenses. shl continue to be their agent under this agrmt, all reasble expses for carriage or delivery of the sd goods or merchandise, & for books, stationery, & postage, and all other reasble & customary expses attendg the sale thof, or orwise incurred by