(145 N.E.) "We understand that the court in addition to [4] It is no part of the commissioners' duthe evidence offered today is to take into con- ty to decide that partition should be made sideration the commissioners' evidence."

by sale. But it is in accordance with the

spirit of the law on the subject, and a comThe judge replied:

pliance with the requirement, that the com“I will certainly go over the commissioners' missioners report their doings to the court, evidence, because that is practically all the evi- for commissioners, who have attempted to dence I have got."

make partition and found it impossible to do

so, to report this fact to the court. It being impossible for this court to know [5] The appellants' third contention is that whether this testimony, which ought not to the court erred in refusing to grant their rehave been considered by the judge, affected quest that the burden of proof that the land his judgment in deciding that the partition cannot be advantageously divided is on the should be by sale, the case must be remanded party seeking a decree for sale. The court to the Probate Court for the determination must find by a preponderance of the whole of the question, whether the land can be ad- evidence that the land cannot be advantagevantageously divided, upon competent evi- ously divided before ordering a sale. But dence at a rehearing of the case on that is this does not mean in partition proceedings sue.

that the burden of proof on this issue is on [3] The second contention of the appellants one party or the other. The argument that the is that the judge erred in refusing to give petitioners have the burden of proving that their request that the report of the majority the land cannot be advantageously divided is of the commissioners should be set aside no stronger than the argument that the rebecause it did not conform to the precept spondents have the burden of proving that in their warrant. The first statute which au- it can be advantageously divided. The pethorized a sale upon a petition for partition titioners ask for a partition in the form rewas enacted in 1870. It was therein pro-quired by G. L. C. 241, $ 6, and have the burvided that if the commissioners to make par- den of proving the essential allegations in tition became satisfied that a partition could their petition. An allegation that the land not be made without great injury they were cannot be advantageously divided is not reto report the same to the court and the court quired by the statute. The court decides after due proceedings might order a sale to whether partition shall be by division or be made by a trustee. This law was repealed sale. If, in the course of the proceedings, by St. 1871, c. 111, which contained substan- one party contends that on the facts shown tially the provisions which appear in Pub. there should be a sale, and the other that Sts. c. 178, § 65. In G. L. c. 241, $ 31, the there should be a division, this does not phraseology was changed but the meaning mean that the party making either of these remains the same. In Ramsey v. Humphrey, contentions has the burden of proof. 162 Mass. 385, 38 N. E. 975, the court in con

[6] The appellants' fourth contention is sidering the effect of the repeal of St. 1870, that the judge erred in refusing to grant their C. 257, and the enactment of St. 1871. c. 111, request that if it appears that a fair division said at pages 386, 387 (38 N. E. 975)

of the land would not seriously damage the

profits from the whole, so long as the re"By force of these provisions, the court, sub- spective owners use their part in a reasonsequently to the time of appointing commission- able manner, such division cannot be found ers, and after such notice to all persons in- to be disadvantageous. This request does terested as may be required, may order the not accurately state the law. Other reasons commissioners to make a sale. The language of the statute is broad enough to authorize the besides damage to profits may be taken into court to pass such an order after the commis- .consideration by the court in deciding whethsioners have made their report as well as be- er the property may be advantageously difore, and we see no reason for giving it a vided. In Hunt v. Hapgood, 4 Mass. 117, restricted meaning.

St. the court in considering whether an estate 1871, c. 111, was intended to enlarge rather could be divided among all tenants in comthan to restrict the power given to the court mon “without prejudice to, or spoiling the by St. 1870, c. 257, which it repealed. It gives whole,” said: the court power in its discretion to order a sale by public auction in any case where lands can

"These words import a case when the shares not be advantageously divided, and at any time divided, from the nature of the estate, would before partition has been decreed.

It may

be worth but little, as in the case of a dwelling often happen that the true situation of an es

house, or some small parcel of land. the retate in reference to the feasibility of dividing spective shares of which, holden in severalty, it will appear much more clearly after the would be of much less value than when holden commissioners have attempted to divide it, or

together." to set off the whole or a large share to one

In Heald v. Kennard, 180 Mass. 521, 522, who is to pay money to the others, than before their attempt, and it seems to us that this 63 N. E. 4, 5, the court said: provision for ordering a sale at any time in “The considerations which determine whether the discretion of the court is wise and just." land can be divided advantageously no doubt





have reference mainly to the physical conditions is no evidence to warrant a finding of disof the land to be divided, but the advantage advantage from division, except that relator disadvantage generally must be pecuniary. ing to the element of wild fowl shooting."

* In this case (which was a petition for Whether the property could be advantagepartition of a cranberry bog] the advantageousness of the division was in part a question of ously divided is a question of fact for the market values, and from this point of view we trial judge, to be decided by him upon all are of opinion that the judge was warranted competent evidence bea ng on that issue; in considering the de facto condition of the and it is for him to decide what weight premises. We cannot say that he was wrong should be given to evidence as to shooting in finding that the practical advantages were so privileges in determining the value of the greatly in favor of a sale that it ought to be land, and the damage thereto which would ordered. There is no reason to doubt that he be caused by a physical division. took into account the chances attending an auc

For the reasons stated in the discussion of tion sale of this property and the danger alleged by the respondent that his rights will be the appellants' first ground of appeal, the sacrificed, as well as the probabilities of an decrees are reversed; and the cases are reagreement between the parties as to the use of manded to the probate court for further the water in case of partition."

hearing in accordance with this opinion to

determine the question whether the lan At the request of the respondents Crom- be advantageously divided and for the entry well the court ruled that the disadvantage of such decrees by the probate court, as the ous results from a division of the land which facts found at such hearing justify. would authorize the court to order partition

Ordered accordingly. by sale, must be based mainly upon the physical condition of the land and must be principally pecuniary, and also that:

“In order to warrant a finding that the land cannot be advantageously divided, it must ap- CHANDLER, GARDNER & WILLIAMS, Inc., pear that a division would cause substantial

V. REYNOLDS. damage to the whole, or that a division would

(Supreme Judicial Court of Massachusetts. lessen the profits to be derived from the whole

Essex. Dec. 3, 1924.) together."

1. Contracts O 10(2)-Contract containing The appellants' fifth contention is that the

agreement not to compete held valid as to judge erred in refusing to grant their request consideration and mutuality. for a ruling that, the respondents Cromwell Agreement of employment under seal now having full right to shoot over the whole wherein employee in consideration of emplog. land in any manner they please, no damage ment was not to enter similar business in city to the petitioners' shooting rights can be or vicinity which might be construed as comfound to result from the proposed division petitive to undertaking business for 10 years which restricts said respondents to a small consideration and mutuality of obligation; fact

after termination of employment held valid as to part of the whole land. The proposed di- that employer was to be sole and exclusive vision to which the request refers, is that judge whether ground for discharge existed suggested in the minority report of one com- not affecting it. missioner. It could not be ruled as matter

2. Contracts w282-Contract that employer of law that the restriction of the respondents

was to be "sole judge" whether employee to a small part of the land would not dam

properly performed work construed. age the petitioners' shooting privileges. This

Contract of employment, in which emplog. was a question of fact.

er reserved right and privilege to discharge [7] The appellants' sixth contention is employee at any time, should employee fail to that the judge erred in finding and ruling properly perform his work, meant that employ. that the premises cannot be advantageously er's judgment was to be sole and exclusive divided by physical division without great only if justly and honestly entertained. damage to the total value, and in the con- 3. Contracts 117(2)-Contract not to enter sequent ruling that partition should be made into undertaking business in city or "vicinity" by sale. At the appellants' request the court for 10 years not unreasonable restraint of ruled that “Advantageously" and "without trade. great inconvenience" are synonymous terms Agreement by an employee that after termifor the purposes of this case and each is to nation of contract he would not engage in be construed as meaning "without great dam- undertaking business in city or vicinity for 10 age to the whole”; that "it is erroneous to years was not, as matter of law, invalid, as untreat the land in question solely as a duck intended to include territory in immediate

reasonable restraint of trade; "vicinity" being shooting preserve”; “in addition to its value neighborhood of city where undertaker would be for shooting wild fowl, the court should con- in competition with employer. sider the value of the land for real estate

[Ed. Note.-For other definitions, see Words development, for summer residences, and for and Phrases, First and Second Series, Vicingeneral recreation purposes," and that "there ity )

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(146 N.E.) 4. Evidence w460(2)-Situation of parties business of “undertaking embalming,

and circumstances at time of contract admis- conducting funerals and selling funeral and sible to apply it to subject-matter.

burial supplies and equipment of every kind Situation of parties and circumstances at and character.” In October, 1921, the detime contract is made may be shown to apply fendant became the assistant manager of the contract to subject-matter.

J. W. Emerson Farrell Company, which posi5. Evidence w 455–Extrinsic evidence admis- tion he continued to hold until the sale of sible to determine meaning of contract term. the stock, fixtures and good will of that

Extrinsic evidence is admissible to deter- company to the plaintiff At the time when mine meaning of term of contract.

this sale was made the plaintiff, under the 6. Injunction em 61 (2)—Relief properly grant. name of Chandler & Farrell, Inc., entered od against one who in violation of contract into an “Agreement of Employment" under set up undertaking business within city and seal with the defendant, in which (so far vicinity.

as here material) it was mutually agreed beWhere former employee, in violation of tween the parties, in substance, that the employment contract, set up undertaking busi- plaintiff was engaged in the undertaking dess on same street and within 50 yards of em- business in the city of Haverhill; that by ployer's place of business, employer was en reason of its skillful methods of embalming, titled to injunctive relief against him.

its ability to establish and maintain the good 7. Injunction 208-Deeree against engaging will of the people, through personal conin undertaking business held too indefinite.

tart of its officers and employees with its Decree restraining defendant from engaging patrons and the public generally, it had in undertaking business in named city and "vio built up a large and profitable business; cinity" held too indefinite.

that because the defendant was unfamiliar Appeal from Superior Court, Essex Coun- with the methods and details of said busity; J. H. Sisk, Judge.

ness, the plaintiff would have to devote conBin in equity by Chandler, Gardner & instruction would of necessity bring the

siderable time to instructing him; that this Williams, Inc., against Aaron A. Reynolds, defendant into personal contact with the to restrain defendant from engaging further

plaintiff's patrons; that, in consideration in business of undertaking in city of Haverhill until July 1, 1932. Decree for plaintifr, of the employment itself coupled with the

compensation stipulated in the agreement and defendant appeals. Reversed and re

to be paid, and also recognizing the fact manded for further hearing.

that his entering into a similar business in H. W. Ogden, of Boston, for appellant.

said city of Haverhill and vicinity under the H. W. Babb, of Boston, for appellee.

facts, circumstances and conditions above SANDERSON, J. This is a bill in equity set forth would naturally and inevitably brought to restrain the defendant "from en result in great and irreparable loss, injury gaging further in the business of undertaking and damage which could not be adequately in the city of Haverhill until July 1, 1932," estimated or measured in money, the dewith a prayer for the assessment of dam- fendant would “not enter into, either directages, and for general relief. The case was ly or indirectly, as employee, manager or heard by a single justice of the superior proprietor, owner, stockholder, co-partner or court who made findings of fact, upon which otherwise, in the said, City of Haverhill, a final decree in the following form was en- Mass., and vicinity, the same, or similar tered:

business, which in any manner might be "This case came on to be heard at this sitting,

construed as being a competitive business" and was argued by counsel, and upon the facts of the plaintiff “for a period of ten years found by the court, a memorandum whereof bas after such termination of said employment, been filed in the case, it appearing that the

as in this agreement provided"; that plaintiff is entitled to the relief prayed for in its the compensation should be $10 per week bill, it is thereupon, upon consideration thereof, and the employment be for three months endordered, adjudged and decreed:

ing October 1, 1922; that the plaintiff re"1. That the defendant, Aaron A. Reynolds served the right and privilege to discharge be restrained from engaging further in the the defendant “at any time, should [he] fail, business of undertaking in the city of Haver-neglect or refuse to properly perform his hill and vicinity until July 1, 1932."

said work under this agreement,” or should The case is before us on the defendant's he perform any act of personal conduct appeal from this decree.

which, in the opinion of the plaintiff might The plaintiff corporation, under the name tend, either directly or indirectly, to injure of Chandler & Farrell, Inc., was engaged it or its business, the plaintiff to be the sole in the business of undertaking and embalm- and exclusive judge in either case; that ing in the city of Haverhill. On July 1, the provision stipulating that the defendant 1922, it bought the stock, fixtures and good will not enter into a similar or competing will of the J. W. Emerson Farrell Company, business in Haverhill and vicinity should which owned and conducted a like estab- continue during the term of the agreement lishment, and thereafter continued in the land any and all extensions thereof. On Sep

J. W. Farrell for about three months

. Aft- | ****

tember 26, 1922, the parties agreed that they of ten years after such termination of said contract, entered into on July 1, 1922, should employment” will be enforced by a court be extended until canceled by a 30 days' no of equity; and (3) whether the decree is tice by either party, and the wages should too vague and uncertain to be given effect. be increased to $100 per week from October [1, 2] The contract was valid in respect to 1, 1922 No evidence as to damages was consideration and mutuality of obligation. offered at the trial.

This has been so recently decided after full The court found that, upon the evidence consideration in the case of a contract in relating to the defendant's conduct and per- many respects similar to the one in quesformance of his duties, the plaintiff had | tion, that no good purpose would be served sufficient cause to discharge the defend by doing more than to refer to that case. ant, and on March 12, 1923, gave him formal Sherman v. 'Pfefferkorn, 241 Mass. 468, 135 notice of his discharge; that in January, N E. 568. The fact that this plaintiff was 1923, while in the employ of the plaintiff, to be the sole and exclusive judge wheththe defendant became a registered embalm-er any one of the stated grounds for diser; that he was instructed by the president charge existed, does not lead to a different of the plaintiff company both orally and in conclusion. The contract fairly construed writing as to the methods used in its under- means that the plaintiff's judgment is to be taking and embalming business; that the sole and exclusive only if justly and honestly defendant, while so employed, came in con- entertained. Tobin v. Kells, 207 Mass. 304, tact with the families who employed the 93 N. E. 596. 1 Williston, Contracts, § 44; plaintiff, and that during the period of his American Music Stores y. Kussel, 232 F. employment by the plaintiff he had charge 306, 146 C. C. A. 354, L. R. A. 1916F, 882. of 75 funerals. “Shortly after the defend-Each party had enforceable rights under the ant ceased to work for the plaintiff he en contract and there has been a change in the gaged in the undertaking business in Lynn, situation of the parties because of the conMassachusetts. Later he went into the un tract and a partial performance of it. Freedertaking business in Haverhill with JW. man v. Fishman, 245 Mass. 222, 227, 139 Farrell, the father of J W. Emerson Far- N. E. 846. In Preston v. American Linen Co., rell. He continued in that business with 119 Mass. 400, 404, the court said:

"It is competent for either party to give to er that time and up to the date of this trial the other the right to terminate the contract he was associated in the undertaking busi- abruptly while he himself agrees only to do so ness with Mrs. Farrell, the wife of J. W. upon notice; and such a contract would be Emerson Farrell, under the name of Farrell good upon sufficient consideration." and Reynolds, in a store at 35 Main Street, Haverhill The plaintiff's place of business

[3] The decree entered necessarily means was at 53 Main Street, about 50 yards from that the trial court found the period of ten the place of business of Farrell and Rey- years to be reasonable. An agreement for nolds." It is stated in the findings of fact this period of time is not as matter of law that it did not appear in evidence whether invalid as an unreasonable restraint of trade. the defendant and Mrs. Farrell were part- United Shoe Machinery Co. v. Kimball, 193 ners, nor what the arrangement was be Mass. 351, 79 N. E. 790; Foss v. Roby, 195 tween them; and that the defendant in Mass. 292, 81 N. E. 199, 10 L. R. A. (N. S.) cross-examination testified that “she [Mrs. 1200, 11 Ann. Cas. 571. At the time when the Farrell] was there [35 Main street] now, plaintiff purchased the good will of the and is working with him (the defendant]." business of the defendant's employer he enThe court further found that a sign bearing gaged the defendant to work for him, and one the names Farrell & Reynolds is maintain of the evident purposes of making the coned and has been for some time past over

tract with him was to protect the good will the store No. 35 Main street; that Farrell which he then bought. The plaintiff agreed & Reynolds, when they opened their store, to teach the defendant its methods of doing advertised their business in the Haverhill business, its processes of embalming, and to newspapers; that they had conducted about bring him personally into touch with its 18 or 19 funerals in Haverhill and vicinity customers. One of the purposes of the agreesince the defendant ceased to work for the ment was to prevent the defendant from takplaintiff; and that “the fair inference is ing advantage of the knowledge thus gained that Mrs. Farrell was secured solely for the by engaging in a competing business in the use of her name by the defendant."

territory named to the injury of the plainThe questions for our determination are: tiff. By using the word “vicinity" the par(1) Whether there was consideration moving ties must have intended to include the ter. from the defendant support the contract ritory in the immediate neighborhood of and the covenant not to engage in a compet- Haverhill where an undertaker would be in itive business; (2) whether the covenant competition with the plaintiff. In Commonof the defendant that he would “not enter wealth v. Parker, 2 Pick, 550, 553, the court, * * * the same, or similar business," in the in discussing the meaning of the word "vicincity of Haverhill and vicinity, “for a period ity' in the article of the Declaration of

(145 N.E.) Rights which provided that “in criminal may be enforced. It must inform the par. prosecutions the verification of facts in the ties as to their rights and obligations. It vicinity where they happen, is one of the must contain enough to permit the court itgreatest securities of the life, liberty and self to adjudge whether its decision has property of the citizen,” said the word "vi- been fouted, if there are proceedings for einity” is not technical, with a precise legal contempt.

A final decree 'provides meaning as the word county or vicinage for all the contingencies which may arise would be held to be. The words “Haver- and leaves no necessity for any further orhill and vicinity” are not too indefinite to der of the court to give to all the parties be enforced. Burton v. Douglass, 141 Wis. the entire benefit of the decision.'" John110, 123 N. W. 631, 18 Ann. Cas. 734; Morris- son's Case, 242 Mass. 489, 494, 136 N. E. 563, town Auto Bus Co, v. Madison, 85 N. J. Law, 565. "It is the final adjudication of the 59, 88 A. 829. They are not as matter of court upon the issues raised." Smith v. law too wide to be a reasonable restraint Smith, 222 Mass. 102, 103, 109 N. E. 830, of trade. Timmerman v. Dever, 52 Mich. 831. It follows that the statement in the 34, 17 N. W. 230, 50 Am. Rep. 240; Sher- decree that the plaintiff is entitled to the man v. Pfefferkorn, supra.

relief prayed for in its bill should be omit[4, 5] It is well established that the situated. tion of the parties and the circumstances at [7] So much of the decree as enjoins the the time a contract is made may be shown defendant from engaging in the business of to apply the contract to the subject-matter, undertaking in the city of Haverhill is suffiand that extrinsic evidence is admissible to ciently definite; but that part which redetermine the meaning of a term of a con- strains him from engaging in the business tract. New England Dressed Meat & Wool of undertaking in the vicinity of Haverhill Co. v. Standard Worsted Co., 165 Mass. 328, is not definite and does not inform the par332, 43 N. E. 112, 52 Am. St. Rep. 516; Smith ties of their rights and obligations under it. F. Vose & Sons Piano Co., 194 Mass. 193, 80 The decree is reversed and the case is reN. E. 527, 9 L. R. A. (N. S.) 966, 120 am. St. manded to the superior court for further Rep. 339. In the case of Haley v. Dorchester hearing to determine the meaning of the Mutual Fire Ins. Co., 12 Gray, 545, the jury word "vicinity" by fixing the limits beyond were permitted, after hearmg evidence, to the city of Haverhill, if any, within which determine the meaning of the word “vicin. the defendant if engaged in the undertaking ity" used in an application which was made business would be in competition with the part of a contract of insurance. In Gilman plaintiff, and, after hearing, for the entry v. Dwight, 13 Gray, 356, 74 Am. Dec. 634, of a decree not inconsistent with this opinthe defendant had sold the plaintiff his ion. professional business as a doctor in South

Ordered accordingly. Deerfield, and agreed that for four years no other physician would establish himself in South Deerfield as a competitor unless the plaintiff should commit some act which

PENNSYLVANIA R. CO. V. DONOVAN. would forfeit to him the confidence of the

SAME v. CUNNINGHAM. community. South Deerfield had no fixed territorial limits. The court held that the

(Nos. 18701, 18702.) terms of the contract were not so indefinite (Supreme Court of Obio. Nov. 25, 1924.) and uncertain that a court of law would not attempt to enforce them; that the term

(Syllabus by the Court.) community in the contract "interpreted ac- 1. Easements Cw5, 8(2,3)-How easement by cording to the subject matter would probably prescription acquired; permissive use never be held to be the population residing in the gives prescriptive right. village (South Deerfield] and its vicinity, An easement by prescription may be acamong which the defendant practiced his quired by open, notorious, continuous, and adprofession at the time of his contract with

verse use for a period of 21 years. Such use the plaintiff"; and also, that what was

never ripens into a prescriptive right unless usually known as South Deerfield might be

the use is adverse and not merely permissive. shown.

2. Easements Om 8(2,3)-Permissive use of [6] The plaintiff is entitled to equitable

driveway furnishing access to station plat. relief against the defendant who, in vio

form held not to ripen into prescriptive right. lation of the terms of his agreement, has

Where a railroad station does not have its set up a competing undertaking business on platform located in close proximity to a street

or highway, and for the purpose of affording acthe same street and within 50 yards of the

cess to such platform for the accommodation plaintiff's place of business.

of vehicles and other patrons of the carrier "A final order of a court settles rights of opens a driveway from a street to such platparties. It must declare by its own terms form, which driveway does not open into any what those rights are to the end that they lother street, the use of such driveway by such

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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