The Injunction

'Fh Vircn'tt Court for (he County of Wushtenaw- ín Chancery. Rice A. Bical. Complainaiit, Ai. vrx W. Chase, thkAVn ArborPiuntINO AND PUBLISHING CüMPANT, Defendanta. ín this cause a preliminar}' injuncrion iras granted i)nn reading and fiiing thc Ijill of complaiuarit. 'I lie defendanta, without nnswcr or ploa to the bilí move ti) dissolve the injunction, and cliiiiii the right to be heard in support of their motion upon affidavits, upon t lio ground that t!n retaining of the injunction will result in irreparable injury to the dcI' nilants. Tlic readinír of the afïïdavits was objected to by coto plainant's counsel, that it was in competent, and that affidavits could nol in any case be subslitutid for a ilea or anSW1M-. The affidavits were allowed to be read subject to the objeetion, reserving my decisión as. to the effect to be privón theiii until the final det-i-ion of the tuotion to dissolve flie injunetion, and liaving fully heard Mr. Beakcs and Mr. Lothrop of counsel for the defendanta in support ot' the tnotion, and Mr. Kinne and Mr. Kelch of counsel fur coiuplninant in oppnsition thereto, and haring tully and care f ui ly eonsidered the same, I am forced to the conclusión : First, That the affiduvits which were read in evident cannot, and ought not to be received execpt the aJSdavit of Zina 1'. King which was read for tlie purpoge of showing a fonner snit pending between the same partieg, and for the same object, and for that purpo-e l am of the opinión that bis affidavit is admissible. Second, The affisttvits (except the indi vidual afiidavit of Zina P. Kiug afnroi-aid being ruled out, the granting or denyinj of the inotion must depend upon the equitj or want of C(Juity in the coinplainnnt'.s liill as. tlje case now stands upon the awuin bil alone. 1 liird, Tliat all the material allegatku)3 in the sworn bill of compl linant must, fin the parpóse of determining this inotion be regarued as truc, for the reason tha :hey are nut denied either by answer oi plea. The first question then to be determinec is : Is the contract which is set out in the bill between the complainant and the de fendant, Chase, a valid contract? It is contended by the defendant's coun sol, that this is a contract "in n-straint o trade which is oontrary to public policy,' and that it is therefore void. And while they admit that a contrac not to carry on one's trade in a part of tht State, or at o particular place may be valid if reasonable, "that is. if no broadei than the legitímate interests of the protu isee required, and if not oppressive. and i foundrd on a lawiul coiisiileration." Yet they claim that a contract not to pursut one's occupatiou at all within the State is void. And if we were to decide thisoase in the lirht of the old deoisiona referred to bj defendant's counsel, we should be led to the inevitable conclusión tkat this contrae which containg a promise on the part o the said Chase, "' that while the said Bea remained in the business of printing anc publishing in Aun Arbor, he, the sait Chase, wóuld not either directly or indiiectly engage in the business of prinlini or publishing in the State oí Michigan,'' was void. But upon the cxaviiination of the non recent decisie ns it does appear to mg tha: the courts have been rradually reláxing the old rule, and that where thc restraint is jimited at all, they will inquire whethei it is " reasonable liuiitation," and that. if this question is to be answi ivjd by a reíerence to the cases, the probable conclusión would be that alinost any liuiitation would suflBoe." Hee 2 Parsons on Contracts, p. 259. In this case there is not, nor indeed can tliere be any question as to the sufficiency of the consideratioii for the contract. The question of Public Policy cannot enter into thc case, as it is only a contract which secures the cnnplainant n the exolo-sive enjoyinent of the business he purchaed, as agmnsl a single individual whiie all tbe world besiiie are lefl at full liberty to enter uiion the saine enternri.se. And it seems that the contract in this caso must bc construcd, thorefore, with referente to the right.s and interest of the parties thereto. And Pursons in his very able wiirk on tlio Law of Contracta in vol. 2, p. i?ü4, after saying that " ii' an action be brought ou buoh a coima -t tu remover damages f'or carrying on the trade whieh it, is agreed fhal! be abandonr d the defense ofillegaüty niay be made;" irauaediutely follows that statement and in the satueoonnection with thisrerypertinentand positivo asscrlion : "Aml yct it is a:i-tniu tlmf every ís at f all liberty tn abandon ir in van hts occupation at lux own pletisure." The public can suffer 110 loss by ODe maa's selling out the business of pnntine and publisbing together with tlie goud wiil of his business to another úo continúes the same business in the same place. The trade or business is not abaodonod bttt bas only cbanged hands, and the trade and the business pertaining thereto iacontinued for aught that appcars wilh the sanie zeal and energy as before the chango. llw then ithe public injured by tlie change? The question ajiain recurs : Is the liniitation in this contract reasonable. "How ;fa.r the rostraint may extend depends upon the nature of the business to which the contract relaces ; as _a general rule it may be said to extend fur cñough to afford a fair protection to the purchüger of the business which the seller agreed to rclinqu'sll." . Chanpel Vs. BrockwaV, '2Ï Wend.-, 158. This contract, like the one in the r;.+e of Hubbard vs. Miller, recencly deci-)ed in our own Supieme Court, a-i to, whether it can be supported or not, it secms (o me depends upon mattere outside of and beyond the abstract fact of the contract or the pecuniary consideration ; it must deper.d upon the situation of the parties, tlie nature of their business, the interest to be protected by the restriotion, the object and intent of the promissor in making the contract, its effect (if any) upon the public, in short; upon all tlie surrounding'ciicuinstances ; and the weight or effect to be given to these circunistancea (as in that case is not to be affected by any' presumption f'or or against the validiiy of the restraint. If' reasoiiable and just tlie restriotion ehould 'be sustaiöed, if not it should be declared void.What'ai-ö tlie facts and circnuistances of this case ? The defendaht Chase was engaged in the printing and publishing business, and in publishing and the sale of a certain boofc described in the bill. Ilis business and the f-ale cf his book is not oniy coextensivc with the limita oí' the State, hut it extends far beyond it, and hito and throughout many other States. He bas accutnulated from this business a competency for liiniself and family, and wishes to retire from the business cntiiely. He, for the consideration of sixty-five tnousand dollars, sells and conveys to the complainant his printing establishment and everything pertaining to it, his eubSfiription lisi. the copyright of his book, and the goodwill ot his entire business, and agrees that wliile the complainant should remain in said business of piiiitiiiir and publishing in Arm Arbor, lie, the said Chase, would not, either diructly or indireotly, engage in the business of printing or publishing in the State of Michigan, and that the said coinplaiimnt shimld have the privilege of receiving the letters connected with said business and opening the same, and that all moneys, drang, woriey orders, etc, which sliould be received lor the parchase of the said book, or for the payment of' printing and publishing by said establishment, should belong to and remain the property of said coinplainant. Now in my opinión this contract was made in good faith between the parties, and that the dcfendant Chase intended and understood the contract to be just wbat ia claimed for it by the bill, is evidenced in bis future conduct, and in his acquiescence in it for a long time thereai'ter. The public are iu no way injuriously fected bj' the transfer óf thia business f roni one party lo the dther, tberé - ho restriotion of trade by ii ; and ir. aeëina to me ihat, oonsidering the duture and extent of the business, the cireuiustanees and intentiónof the parties, the fttct thal thé re.traint contracted fbr etite'red largely intd tlie consideration for the pufchase, and ihat the p'urchase would not have been made without it, thar the good-will of' the entire business was conveyed by tli (ale, thal the business was oo-exteusive with ih State, and extended into Other States, and all the Runounding cirouuastances of the case. The contract wis reasonable, ust, not contrary to public policy, for a good, valid and adequate oonsideration, and must be held to be aliJ. Bul it is claimul by defendant's counsel tliat it' the contract i.s valid as to defendant Chase, it would not bind the defendant "The Ann Arbor Printin'g and Publishing Company," that that is a distinct entity, a corpnration, and t'iis branchor pointin the oase bas given me very grave doubta aa to whut ought to be done in the piemi.-es, as upon the first view of' tlie oase there seetned to be greal force in the argument that il' a eorporation, they were not bound by the contract of Chase. But wlicn it i.s considered that the bill shows that defendant Chase, before the A..-sociation was organized, bad detsrniiried to viólate bis contract by again enteiing into tlie business of printing and publirfbing, and of the publishing and sale ol' a new Receipt Buok, which was calculati '1 and intended to take the place ol tbc o'd one, which wii.s sold to complainant. That be had thrcatened the complainant that be would do so. That he promoted and oaused tlio organization of said Oorp_orat:on with the intention of evading bis lkbility by the use oí the. corporate name instead of bis uwii ; that he himself took and owns a oontroHing interest in the stock of the Corporation ; that he became and is the President, Superintendent, and Managing Agent of the Corporation; in sbort, that he was and ia, as claimed by the bill, the Corporation, and that all the other stockholder.s had knowfedge and notice ot' bis contract with eomplainant. The case is presented in a different licht, and itseems to me that these stockhofders were all bound to take notice of Chase's contract and liability thcreon to the complainant. But, says the defendants' counsel, the complainant bas a remedy at law, " if any remedy at all," and it wiil result in irreparable injury to defendants if thia injunction is retained. ( )n the other hand, it is elaimed by the complainant'a counsel that the diseolving of the injunction would result in far greater injiny to the compla:nant than the retaininu- of it can to defendants. If the altegations of the Lili are truc, anS they must be so taken " until they are denied," only an injunction can be un ad equate remedy, and the complainant cannot be required to li,i by and sce bis business destroyed, and walt for the slow and uncertain process of a suit at law for d„uiages. Upon the qusstions of restraining corporations, and of eomplainant's remedy at law, see the case of Middleton et al., v. 'l'he Flat Kiver Boouiing Company et al., decided by our Supreme Court at the last term. , The motion to dissolve the injunction in tbis case is therefbre denied, and it is mdered that the modification of the same as ordered on the twenty-fiist day of July instant, be and the sanie is heroby set aside and held for naught, and that the f-aid injunction do stand iu full force and effect as originally granted, without modification or alteration, until the coming in ol' the defendants' answer to said bill of complaint, and until the further order of thia Courtj exoept that the said defendant C'hase shall not be prevented by .said injunction from taking from the post-oflice any and all letters directed to himself or faniily which shall be designated by the numberof Ins. post-ofiice box, 351, written thereou. Alex. D. Crane, ' Circuit Judge. Datccl Jiily 30th, 1873. The public is not yet officlally advised that üov. Baoley has selected any of the members of the Consstitutional Commission, the appointment of wliieh was devolved upon him by joint resolution of the last legislative session. We hear a report, howover, that he has made at least ono oiFor of a seat in such connnission, and that to Judge WÏTHBY, of Grand Rapids. Now, we have nothing to object to the personal, professional or other qualifications of Judge WlTIIEY. Conceding everything which Gov. B.u;LEY has discerned in him or which bis friends may claim for him, and yet, to our mind, thore is at least onesubstantial xnd insurmountable objection to his apjointment. Judge WlTHET owes all of lis time and talent and legal acquirenents to the important position he holds. ' Can a man serve two masters " o?' earn 'ico salaries. Boyoncl tnis, we do not deern it proper for a United States judge or othor United States official to have the shaping oí our State Constitution. So oareful were the framers of our present Constitution to protect State rtglits and guard against the influence of United States officials, of high or low grade, that they proliibited any United States offieer f rom holding a seat in the Lcgislature. If tliis prohibition was or is reaaonable, - and its proprie'ty or necessity has nover been disputed, - it is, at loast as important that our organic law should not bo subjected to the manipulation of a class forbidden to lay harlds upon the mero statuto laws. Our State Courts, with their jurisliction - just now in most iinportant matters in serious conrh'et with the United States Courts - should not be romodoled by a United tëtated jildge, wkatever may be the acumen and integrity he may bring to the worlc. A COTIHEXT newspaper paragrapli say that Gov. Bagley has retained as counsel to assist Attorney-General Ball in maintaining tho right of tho State to tax the railroad grant lands, as provided for by an act of the last session of the Legislature, Messrs. Alfred Kussell and CA. Kent, of Detroit, Hou. Charles Ursox, of Coldwater, and Judge Giddi.vgs, of one üf the western circuits. If we are not mistaken this is the same Judgo GidDIN03 against whom impeachment proceedings were atteniptcd. last winter, and who may thank tho soft hearts (and softer heads) of his legislativo friends for a continuod lease of office, while, if there is any truth in reporta coming from his section of tho Stato, his practices and habits are yet such as to soil tho judicial ermine and reflect disgrace upon his immediate constituents as well as upon the whole body of the poople of tho State. If it is at all fit to retain one of the circuit judges in the casa in question or any other, which will admit of serious doubt, bas Judge GlDIirQ8 such overshndowing legal ability and acquirements as to outweigh objections which ought to have been patent to Gov. Bagley? By the death of S. D. Parker, at Bos;on, the number of the snrviving graduales of Éfarvard College before 1801 is educed to two, both of whom were born n 17K0 and aro eminent lawyera nndexaemberá of Cóhgress - Hornee Binney, if Philadelphia, member of Congress, [833-5, and Villiam Hall, member of üongress, 1816-20, and more recently Judge of the United States Court of Delaware.