(145 N.E.). "We understand that the court in addition to the evidence offered today is to take into consideration the commissioners' evidence." The judge replied: "I will certainly go over the commissioners' evidence, because that is practically all the evidence I have got." sue. [4] It is no part of the commissioners' duty to decide that partition should be made by sale. But it is in accordance with the spirit of the law on the subject, and a compliance with the requirement, that the commissioners report their doings to the court, for commissioners, who have attempted to make partition and found it impossible to do so, to report this fact to the court. [5] The appellants' third contention is that It being impossible for this court to know 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 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 An allegation that the land tition became satisfied that a partition could their petition. not be made without great injury they were cannot be advantageously divided is not reThe court decides to report the same to the court and the court quired by the statute. after due proceedings might order a sale to whether partition shall be by division or sale. If, in the course of the proceedings, be made by a trustee. This law was repealed 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 considering the effect of the repeal of St. 1870, c. 257, and the enactment of St. 1871. c. 111, said at pages 386, 387 (38 N. E. 975). Darrow * * "By force of these provisions, the court, subsequently to the time of appointing commissioners, and after such notice to all persons interested as may be required, may order the commissioners to make a sale. The language of the statute is broad enough to authorize the court to pass such an order after the commissioners have made their report as well as before, and we see no reason for giving it a St. or restricted meaning. 1871, c. 111, was intended to enlarge rather than to restrict the power given to the court by St. 1870, c. 257, which it repealed. It gives the court power in its discretion to order a sale by public auction in any case where lands cannot be advantageously divided, and at any time before partition has been decreed. often happen that the true situation of an estate in reference to the feasibility of dividing it will appear much more clearly after the commissioners have attempted to divide it, or to set off the whole or a large share to one who is to pay money to the others, than before their attempt, and it seems to us that this provision for ordering a sale at any time in the discretion of the court is wise and just." It may [6] The appellants' fourth contention is that the judge erred in refusing to grant their request that if it appears that a fair division of the land would not seriously damage the profits from the whole, so long as the respective owners use their part in a reasonable manner, such division cannot be found to be disadvantageous. This request does not accurately state the law. Other reasons besides damage to profits may be taken into consideration by the court in deciding whether the property may be advantageously divided. In Hunt v. Hapgood, 4 Mass. 117, the court in considering whether an estate could be divided among all tenants in common "without prejudice to, or spoiling the whole," said: "These words import a case when the shares divided, from the nature of the estate, would be worth but little, as in the case of a dwelling house, or some small parcel of land, the respective shares of which, holden in severalty, would be of much less value than when holden together." In Heald v. Kennard, 180 Mass. 521, 522, 63 N. E. 4, 5, the court said: "The considerations which determine whether 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 bearing 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 auction sale of this property and the danger alleged by the respondent that his rights will be sacrificed, as well as the probabilities of an agreement between the parties as to the use of the water in case of partition." At the request of the respondents Cromwell the court ruled that the disadvantage ous results from a division of the land which would authorize the court to order partition 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 appear that a division would cause substantial damage to the whole, or that a division would lessen the profits to be derived from the whole together." The appellants' fifth contention is that the judge erred in refusing to grant their request for a ruling that, the respondents Cromwell now having full right to shoot over the whole land in any manner they please, no damage to the petitioners' shooting rights can be found to result from the proposed division which restricts said respondents to a small part of the whole land. The proposed division to which the request refers, is that suggested in the minority report of one commissioner. It could not be ruled as matter of law that the restriction of the respondents to a small part of the land would not damage the petitioners' shooting privileges. This was a question of fact. For the reasons stated in the discussion of the appellants' first ground of appeal, the decrees are reversed; and the cases are remanded to the probate court for further hearing in accordance with this opinion to determine the question whether the land can be advantageously divided and for the entry of such decrees by the probate court, as the facts found at such hearing justify. Ordered accordingly. CHANDLER, GARDNER & WILLIAMS, Inc., v. REYNOLDS. (Supreme Judicial Court of Massachusetts. Essex. Dec. 3, 1924.) 1. Contracts 10(2)-Contract containing agreement not to compete held valid as to consideration and mutuality. Agreement of employment under seal wherein employee in consideration of employment was not to enter similar business in city or vicinity which might be construed as competitive to undertaking business for 10 years after termination of employment held valid as to consideration and mutuality of obligation; fact that employer was to be sole and exclusive judge whether ground for discharge existed not affecting it. 2. Contracts 282-Contract that employer was to be "sole judge" whether employee properly performed work construed. Contract of employment, in which employer reserved right and privilege to discharge employee at any time, should employee fail to properly perform his work, meant that employer's judgment was to be sole and exclusive only if justly and honestly entertained. 3. Contracts 117(2)-Contract not to enter into undertaking business in city or "vicinity" for 10 years not unreasonable restraint of trade. [7] The appellants' sixth contention is that the judge erred in finding and ruling that the premises cannot be advantageously divided by physical division without great damage to the total value, and in the consequent ruling that partition should be made by sale. At the appellants' request the court ruled that "Advantageously" and "without great inconvenience" are synonymous terms for the purposes of this case and each is to be construed as meaning "without great damage to the whole"; that "it is erroneous to treat the land in question solely as a duck shooting preserve"; "in addition to its value for shooting wild fowl, the court should consider the value of the land for real estate development, for summer residences, and for general recreation purposes," and that "there ity ] Agreement by an employee that after termination of contract he would not engage in undertaking business in city or vicinity for 10 years was not, as matter of law, invalid, as unintended to include territory in immediate reasonable restraint of trade; "vicinity" being neighborhood of city where undertaker would be in competition with employer. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Vicin For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (145 N.E.) 4. Evidence 460 (2)-Situation of parties 5. Evidence 455-Extrinsic evidence admis- 6. Injunction 61 (2)-Relief properly granted against one who in violation of contract set up undertaking business within city and vicinity. Where former employee, in violation of employment contract, set up undertaking business on same street and within 50 yards of employer's place of business, employer was entitled to injunctive relief against him. 7. Injunction 208-Deeree against engaging in undertaking business held too indefinite. Decree restraining defendant from engaging in undertaking business in named city and "vicinity" held too indefinite. * embalming, business of "undertaking Appeal from Superior Court, Essex Coun- with the methods and details of said busi ty; J. H. Sisk, Judge. Bill in equity by Chandler, Gardner & Williams, Inc., against Aaron A. Reynolds, to restrain defendant from engaging further in business of undertaking in city of Haverhill until July 1, 1932. Decree for plaintiff, and defendant appeals. Reversed and remanded for further hearing. H. W. Ogden, of Boston, for appellant. H. W. Babb, of Boston, for appellee: SANDERSON, J. This is a bill in equity brought to restrain the defendant "from engaging further in the business of undertaking in the city of Haverhill until July 1, 1932," with a prayer for the assessment of damages, and for general relief. The case was heard by a single justice of the superior court who made findings of fact, upon which a final decree in the following form was entered: "This case came on to be heard at this sitting, and was argued by counsel, and upon the facts found by the court, a memorandum whereof has been filed in the case, it appearing that the plaintiff is entitled to the relief prayed for in its bill, it is thereupon, upon consideration thereof, ordered, adjudged and decreed: "1. That the defendant, Aaron A. Reynolds be restrained from engaging further in the business of undertaking in the city of Haverhill and vicinity until July 1, 1932." The case is before us on the defendant's appeal from this decree. The plaintiff corporation, under the name of Chandler & Farrell, Inc., was engaged in the business of undertaking and embalming in the city of Haverhill. On July 1, 1922, it bought the stock, fixtures and good will of the J. W. Emerson Farrell Company, which owned and conducted a like establishment, and thereafter continued in the ness, the plaintiff would have to devote con- * as in this agreement provided"; that the compensation should be $40 per week and the employment be for three months ending October 1, 1922; that the plaintiff reserved the right and privilege to discharge the defendant "at any time, should [he] fail, neglect or refuse to properly perform his said work under this agreement," or should he perform any act of personal conduct which, in the opinion of the plaintiff might tend, either directly or indirectly, to injure it or its business, the plaintiff to be the sole and exclusive judge in either case; that the provision stipulating that the defendant will not enter into a similar or competing business in Haverhill and vicinity should continue during the term of the agreement and any and all extensions thereof. On Sep tember 26, 1922, the parties agreed that the contract, entered into on July 1, 1922, should be extended until canceled by a 30 days' notice by either party, and the wages should be increased to $100 per week from October 1, 1922 No evidence as to damages was offered at the trial. of ten years after such termination of said employment" will be enforced by a court of equity; and (3) whether the decree is too vague and uncertain to be given effect. [1, 2] The contract was valid in respect to consideration and mutuality of obligation. This has been so recently decided after full consideration in the case of a contract in many respects similar to the one in question, that no good purpose would be served by doing more than to refer to that case. Sherman v. Pfefferkorn, 241 Mass. 468, 135 N E. 568. The fact that this plaintiff was er any one of the stated grounds for discharge existed, does not lead to a different conclusion. The contract fairly construed means that the plaintiff's judgment is to be sole and exclusive only if justly and honestly entertained. Tobin v. Kells, 207 Mass. 304, 93 N. E. 596. 1 Williston, Contracts, § 44: American Music Stores y. Kussel, 232 F. 306, 146 C. C. A. 354, L. R. A. 1916F, 882. Each party had enforceable rights under the contract and there has been a change in the situation of the parties because of the contract and a partial performance of it. Freeman v. Fishman, 245 Mass. 222, 227, 139 N. E. 846. In Preston v. American Linen Co., 119 Mass. 400, 404, the court said: "It is competent for either party to give to the other the right to terminate the contract abruptly while he himself agrees only to do so upon notice; and such a contract would be good upon sufficient consideration." The court found that, upon the evidence relating to the defendant's conduct and performance of his duties, the plaintiff had sufficient cause to discharge the defendant, and on March 12, 1923, gave him formal notice of his discharge; that in January, 1923, while in the employ of the plaintiff, to be the sole and exclusive judge wheththe defendant became a registered embalmer; that he was instructed by the president of the plaintiff company both orally and in writing as to the methods used in its undertaking and embalming business; that the defendant, while so employed, came in contact with the families who employed the plaintiff, and that during the period of his employment by the plaintiff he had charge of 75 funerals. "Shortly after the defendant ceased to work for the plaintiff he engaged in the undertaking business in Lynn, Massachusetts. Later he went into the undertaking business in Haverhill with J W. Farrell, the father of J W. Emerson Farrell. He continued in that business with J. W. Farrell for about three months. After that time and up to the date of this trial he was associated in the undertaking business with Mrs. Farrell, the wife of J. W. Emerson Farrell, under the name of Farrell 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 that it did not appear in evidence whether the defendant and Mrs. Farrell were partners, nor what the arrangement was between them; and that the defendant in cross-examination testified that "she [Mrs. Farrell] was there [35 Main street] now, and is working with him [the defendant]." The court further found that a sign bearing the names Farrell & Reynolds is maintained and has been for some time past over the store No. 35 Main street; that Farrell & Reynolds, when they opened their store, advertised their business in the Haverhill newspapers; that they had conducted about 18 or 19 funerals in Haverhill and vicinity since the defendant ceased to work for the plaintiff; and that "the fair inference is that Mrs. Farrell was secured solely for the use of her name by the defendant." this period of time is not as matter of law invalid as an unreasonable restraint of trade. United Shoe Machinery Co. v. Kimball, 193 Mass. 351, 79 N. E. 790; Foss v. Roby, 195 Mass. 292, 81 N. E. 199, 10 L. R. A. (N. S.) 1200, 11 Ann. Cas. 571. At the time when the plaintiff purchased the good will of the business of the defendant's employer he engaged the defendant to work for him, and one of the evident purposes of making the contract with him was to protect the good will which he then bought. The plaintiff agreed to teach the defendant its methods of doing business, its processes of embalming, and to bring him personally into touch with its customers. One of the purposes of the agree ment was to prevent the defendant from taking advantage of the knowledge thus gained by engaging in a competing business in the 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 terfrom the defendant to 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 prosecutions the verification of facts in the vicinity where they happen, is one of the greatest securities of the life, liberty and property of the citizen," said the word "vicinity" is not technical, with a precise legal meaning as the word county or vicinage would be held to be. The words "Haverhill and vicinity" are not too indefinite to be enforced. Burton v. Douglass, 141 Wis. 110, 123 N. W. 631, 18 Ann. Cas. 734; Morristown Auto Bus Co. v. Madison, 85 N. J. Law, 59, 88 A. 829. They are not as matter of law too wide to be a reasonable restraint of trade. Timmerman v. Dever, 52 Mich. 34, 17 N. W. 230, 50 Am. Rep. 240; Sherman v. Pfefferkorn, supra. for all the contingencies which may arise and leaves no necessity for any further order of the court to give to all the parties the entire benefit of the decision.'” Johnson's Case, 242 Mass. 489, 494, 136 N. E. 563, 565. "It is the final adjudication of the court upon the issues raised." Smith v. Smith, 222 Mass. 102, 103, 109 N. E. 830, 831. It follows that the statement in the decree that the plaintiff is entitled to the relief prayed for in its bill should be omit [7] So much of the decree as enjoins the defendant from engaging in the business of undertaking in the city of Haverhill is sufficiently definite; but that part which restrains him from engaging in the business of undertaking in the vicinity of Haverhill is not definite and does not inform the parties of their rights and obligations under it. The decree is reversed and the case is remanded to the superior court for further hearing to determine the meaning of the word "vicinity" by fixing the limits beyond the city of Haverhill, if any, within which the defendant if engaged in the undertaking business would be in competition with the plaintiff, and, after hearing, for the entry of a decree not inconsistent with this opinion. [4, 5] It is well established that the situated. tion of the parties and the circumstances at the time a contract is made may be shown to apply the contract to the subject-matter, and that extrinsic evidence is admissible to determine the meaning of a term of a contract. New England Dressed Meat & Wool Co. v. Standard Worsted Co., 165 Mass. 328, 332, 43 N. E. 112, 52 Am. St. Rep. 516; Smith F. Vose & Sons Piano Co., 194 Mass. 193, 80 N. E. 527, 9 L. R. A. (N. S.) 966, 120 Am. St. Rep. 339. In the case of Haley v. Dorchester Mutual Fire Ins. Co., 12 Gray, 545, the jury were permitted, after hearing evidence, to determine the meaning of the word "vicinity" used in an application which was made part of a contract of insurance. In Gilman v. Dwight, 13 Gray, 356, 74 Am. Dec. 634, the defendant had sold the plaintiff his professional business as a doctor in South 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 would forfeit to him the confidence of the community. South Deerfield had no fixed territorial limits. The court held that the terms of the contract were not so indefinite and uncertain that a court of law would not attempt to enforce them; that the term community in the contract “interpreted ac-1. cording to the subject matter would probably be held to be the population residing in the village [South Deerfield] and its vicinity, among which the defendant practiced his profession at the time of his contract with the plaintiff"; and also, that what was usually known as South Deerfield might be shown. [6] The plaintiff is entitled to equitable relief against the defendant who, in violation of the terms of his agreement, has set up a competing undertaking business on the same street and within 50 yards of the plaintiff's place of business. "A final order of a court settles rights of parties. It must declare by its own terms what those rights are to the end that they Ordered accordingly. PENNSYLVANIA R. Co. v. DONOVAN. (Nos. 18701, 18702.) (Syllabus by the Court.) Easements 5, 8(2, 3)-How easement by prescription acquired; permissive use never gives prescriptive right. An easement by prescription may be acquired by open, notorious, continuous, and adverse use for a period of 21 years. Such use never ripens into a prescriptive right unless the use is adverse and not merely permissive. 2. Easements 8 (2, 3)-Permissive use of driveway furnishing access to station platform held not to ripen into prescriptive right. Where a railroad station does not have its platform located in close proximity to a street or highway, and for the purpose of affording access to such platform for the accommodation of vehicles and other patrons of the carrier opens a driveway from a street to such platform, which driveway does not open into any other street, the use of such driveway by such For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |