is entitled to an injunction, restraining the defendant from carrying on or being engaged in said business, within the county of Lehigh, which is the relief prayed for in the bill.

"An agreement not to carry on a certain business any where is invalid, whether it be by parol or specialty, or whether it be for a limited or for an unlimited time. Mitchell v. Reynolds, 1 P. Wms. 190, and notes thereto in 1 Sm. Lead. Cas. 705. The rule of law just stated, recognized in Mitchell v. Reynolds- it is much older than said casehas been in substance observed almost everywhere, certainly in Pennsylvania. See Pars. Cont. 751; 2 Whart. Cont., § 430; Story Cont. 550-554; Keeler v. Taylor, 3 P. F. S. 467; Gompers v. Rochester, 6 id. 194; Harkinson's Appeal, 28 id. 196.

"Such a contract tends to prevent persons from obtaining a livelihood, is a restriction upon trade, and, therefore, in contravention of sound public policy.

"On the other hand, contracts restraining the exercise of a trade, etc., in particular localities, where there is reasonable ground for the restriction, are valid and the courts will not inquire into the adequacy of the consideration. McClurg's Appeal, 8 P. F. S. 51; Carroll v. Hicks, 10 Phila. 308, affirmed by the Sup. Ct., Br. Dig. 3051; Bett's Appeal, 10 W. A. C. 431.

"If defendant's covenant not to engage in the business specified, in the county of Lehigh, or elsewhere, is divisible, it may be enforced, so far as the question of space is concerned; if it is not divisible it cannot

be enforced.

"An agreement to abstain from a certain business in a town, or anywhere within a boundary of ten miles, is valid - Gompers v. Rochester, supra-or within a county. Lange v. Werk, 2 Ohio St. 517; Dean v. Emerson, 102 Mass. 480.

"In Oregon Steam Navigation Co. v. Windsor, 20 Wall. 70, Justice BRADLEY, in the course of the opinion, says: The question arises whether the contract is so divisible, in relation to the California portion, that it can stand for the seven years for which the Oregon company is bound, though it be void as to the remaining three years. We think it is so divisible. It is laid down by Chitty, as the result of the cases, that agreements in restraint of trade, whether under seal or not, are divisible, and, accordingly, it has been held that when such an agreement contains a stipulation which is capable of being construed divisibly, and one part thereof is void, as being in restraint of trade, whilst the other is not, the court will give effect to the latter and will not hold the agreement to be void altogether.' The cases cited in support of the proposition are, Chesman v. Nainby, 2 Strange, 739; Wood v. Benson, 2 Cromp. & Jer. 94; Mallon v. Gray, 11 M. & W. 653; Price v. Green, 16 id. 346; Nichols v. Stretton, 10 Q. B. 346. In Price v. Green the contract was not to exercise the trade of a perfumer in London, or within six hundred miles thereof; and it was held divisible and good for London only. This case was carried through all the courts. We see no reason why this principle should not be followed in the present case.' "In said case of Dean v. Emerson, the defendant had covenanted not

to carry on a certain business within the limits of Worcester county, and for the same consideration further covenanted not to carry on the same business within the limits of the United States. The court held that the two covenants were clearly distinct and divisible, and sustained a report of a master assessing damages for a violation of the covenant as to Worcester county; the court said that it was not required to consider the validity of the second covenant.

This principle, it is believed, conflicts with no decision of the supreme court of this State. It is more reasonable than the opposite poposition - that is that said stipulation as to space is not divisible and consequently void. One gives a good and valid consideration and thereupon another promises to do two things, one legal and the other illegal, he shall be held to do that which is legal, unless the two are so mingled and bound together that they cannot be separated, in which case the whole promise is void. 1 Pars. Cont., § 12, chap. 1, p. 380.

"I, therefore, hold, with the learned master, that the contract is divisible and enforceable, so far as it relates to Lehigh county. There was a valuable consideration for the contract; the evidence warrants the master's finding in this respect. That the court did not inquire whether the consideration is equal to that which the party gives up or loses by the restraint under which he placed himself, is decided in McClurg's Appeal, supra.

"The plant for the manufacture of ochre, to which the contract in suit relates, was when the contract was made and still is in Lehigh county; the plaintiff is still interested in said works and the ochre business; although he does not now carry on the manufacturing, he expects to do so again when it can be done profitably. The restriction

as to the county where the plaintiff's works are located-does no more than afford a fair protection to the plaintiff; it does not unfavorably affect the public, nor does it oppress the defendant. For it seems to be conceded that said contract, as to places outside of Lehigh county, is void; if it is not conceded, I think the cases cited leave no doubt that a court will so hold if the question ever arises. The contract, therefore, is not unreasonable. An action at law would not afford the plaintiff an adequate remedy. McClurg's Appeal, supra. The facts found by the master are sustained by the evidence and entitle the plaintiff to the injunction prayed for."

Edward Harvey and D. D. Roper, for appellant. General restraints of trade or industry are illegal and void. 2 Chitty Cont. 982. The law will not permit any one to restrain a person from doing what his own interest and the public require that he should do. Homer v. Ashford, 3 Bing. See 1 Whart. Cont., § 431, p. 596; 1 Add. Cont. 406; 2 Pars. Cont. 747. Particular restraints are sometimes held to be good. If the restraint is partial, as to time or place, and there be a good consideration given to the party in restraint, a contract may be enforced. Masters v. Fell, Welles, 388. If the restraint is unlimited in point of space it is void. Ward v. Byrne, 5 M. & W. 548. The restraint must be partial. Davis v. Mason, 5 T. R. 118; Bunn v. Guy, 4 East, 190; Whittaker v. Hour, 3 Beav. 383; Proctor v. Sargeant, 2 M. & G. 31; Leighton v. Wales, 3 M. & W. 545. The law looks

beyond the form of the contract into its substance. Mallon v. May, 11 M. & W. 665; Ross v. Sudgbur, 21 Wend. 158. A consideration must appear on the face of the agreement, which is the only exception to the rule that a seal imports a consideration. Gompers v. Rochester, 56 Penn. St. 194; Metc. Cont. 233. The reasonableness or unreasonableness of such contracts is a matter of law for the court. Miller v. May, 11 M. & W. 668; Davis v. Mason, 5 T. R. 118; Horner v. Graves, 7 Bing. 735; Chesman v. Nainby, 2 Stra. 739. See Tallis v. Tallis, 1 E. & B. 39; Gale v. Reed, 8 East, 86; Homer v. Graves, 7 Bing. 744; Keeler v. Taylor, 53 Penn. St. 467. They must be supported by a sufficient consideration. Harkinson's Appeal, 78 Penn. St. 196; Gompers v. Rochester, 56 id. 194. There must be a reasonable ground for the restriction. McClurg's Appeal, 58 Penn. St. 51. The court will not give any assistance to a party seeking to enforce a hard bargain. Kimberley v. Jennings, 9 Eng. Ch. 340. In equity a decree is not of right, but it was incumbent on Fell to show that he had suffered irreparable damage and could not be compensated by an action at law. Harkinson's Appeal, 78 Penn. St. 196; Gray v. Railroad Co., 1 Grant Cas. 412; Clark's Appeal, 62 Penn.

St. 447.

R. E. Wright's Sons, for defendant in error. That while contracts in general restraint are void, yet where they are based upon a valuable consideration and are not unreasonable as a protection to the covenantee, and where they are restricted as to time, place or subject, they are valid and will be enforced in equity. The leading English case upon the subject is Mitchell v. Reynolds, 1 Smith Lead. Čas. (Hare & Wall. notes) 641 (6th Am. ed.). "A bond or promise to restrain oneself from trading in a particular place, if made upon a reasonable consideration, is good.' McClurg's Appeal, 8 P. F. S. 51. See Gompers v. Rochester, 6 id. 194; Hitchcock v. Coker, 33 Eng. Com. Law, 106. In 1 Whart. Cont., § 432, it was laid down that "it is no objection to such an agreement that it is unlimited as to time." See Galt v. Tourle, L. R., 4 Ch. App. 659; Perkins v. Clay, 54 N. H. 518; Morse Twist Drill & Machine Co. v. Morse, 105 Mass. 73. "Such an agreement must have a valuable consideration; though the courts, if the consideration be the sale of a business, or instruction in a business, will not undertake to determine whether the consideration be adequate." 1 Whart. Cont., § 434. Citing, Hitchcock v. Coker, 6 A. & E. 438; Pilkington v. Scott, 15 M. & W. 660; Tallis v. Tallis, 1 E. & B. 397; Pierce v. Fuller, 8 Mass. 223; Lawrence v. Kidder, 10 Barb. 649; McClurg's Appeal, 58 Penn. St. 51; Palmer v. Graham, 1 Pars. 476; Grasselli v. Sowden, 11 Ohio St. 349; Jenkins v. Temple, 39 Ga. 655. As to the reasonableness of such a contract, Smith Lead. Cas. 651; Davis v. Mason, 5 T. R. ; Hayward v. Young, 2 Chitty, 407; Green v. Price, 16 M. & W. 346; Elves v. Crofts, 10 C. B. 241; Jones v. Lees, 1 H. & N. 189; Carroll v. Hickley, 10 Phila. 308; Bett's Appeal, 10 W. N. C. 431; Oregon S. S. Co. v. Winsor, 20 Wall.

TRUNKEY, J. The plaintiff and defendant were two of the three

stockholders of the corporation that owned the machinery and plant for the manufacture of ochre, located in Lehigh county. The firm of Smith & Reazor were carrying on the business under a lease, and were indebted in a small amount to their employees, and in a large amount. for royalty. The plaintiff had issued execution on his judgment against said corporation by virtue of which the sheriff had seized all its property, including property claimed by the defendant, and advertised the same for sale on May 24, 1883.

On the day before the sheriff's sale, the agreement was made. That all the parties to the agreement were in some way interested in the business and property is obvious. And it is also apparent that they contemplated that Fell would buy the machinery and plant at the sheriff's sale. Among other things they covenanted that Fell should release the levy on the goods claimed by the defendant; that he should pay the employees of Smith & Reazor the amount due them; and that he would make no claim for royalty under the contract between Smith & Reazor and said corporation, dated July 15, 1882; and the other parties jointly and severally covenanted to forthwith cease the . manufacture of ochre, and not at any time thereafter either as principals or principal, or by or as agents, or employees, or in any other way, engage in the manufacture of ochre in the county of Lehigh, or elsewhere.

Fell purchased the property at the sale as had been contemplated. There is no difficulty about the sufficiency of the consideration for the defendant's covenant. It is more than the release of the property he claimed, if that is of doubtful sufficiency. C. W. Smith, one of the parties of the second part, is his son. He jointly and severally with his son and Reazor covenanted with Fell, the other party, in consideration of Fell's covenants, to cease the business and not engage in it in the future. The joint and several covenant of the three was the inducement to Fell. The agreement, and the sheriff's sale of the property of the corporation, put all the interested parties out of the business, except Fell, and put him in with a covenant by the three that they would not again engage in the business. In effect the plaintiff becaine the purchaser of the property and relieved the others from payment of indebtedness. It was altogether reasonable to settle the dispute about the ownership of the property claimed by the defendant; there is nothing to show that either party to that dispute was acting in bad faith. That it was reasonable for Fell to agree to pay certain debts, and release the claim for royalty, cannot be gainsaid. This agreement seems to be fairly within cases of the first class, upheld as legal, as stated in the appellant's argument, namely: "sales of stock and good-will, with covenant not to carry on the business on the same spot in opposition to the purchaser."

A contract restraining one of the parties from the exercise of a trade within a limited locality, when there is reasonable ground for the restriction, is valid. Inquiry will not be made into the adequacy of the consideration its value will not be measured against the uncertain value of the right to carry on the trade or business if it be reasonable, it is enough. McClurg's Appeal, 58 Penn. St. 51.

The covenant as to place, "in the county of Lehigh, or elsewhere,” is divisible, and valid as to the county; for the present it is conceded to be void elsewhere. This point was decided in a case where the party agreed not to engage in a particular business in Cincinnati or elsewhere. Thomas v. Miles, 3 Ohio St. 274. Other cases are cited by the learned judge of the common pleas, sustaining the same doctrine. None to the contrary was referred to at the argument. Where a county, or city, or borough, is named as a limit, and an unreasonable extent of territory in addition is also named, the covenant is divisible and may be valid as to the particular place which is a reasonable limit. It has been said that all the cases when they come to be examined seem to establish this principle, that all restraints upon trade are bad as being in violation of public policy, unless they are natural, and not unreasonable for the protection of the parties dealing legally with some subject-matter of contract. The principle is this: public policy requires that every man shall not be at liberty to deprive himself or the State of his labor, skill or talent, by any contract that he enters into. On the other hand, public policy requires that when a man has by skill or by any other means obtained something which he wants to sell, he should be at liberty to sell it in the most advantageous way in the market; and in order to enable him to so sell it, it is necessary that he should be able to preclude himself from entering into competition with the purchaser. In such case the same public policy enables him to enter into any stipulation, however restrictive it is, provided the restriction, in the judgment of the court, is not unreasonable, having regard to the subject-matter of the contract. Leather Cloth Co. v. Lor sont, L. R., 9 Eq. 345.

We are of opinion that the court of common pleas rightly held that the covenant as to place was divisible; that it was competent for the defendant to make the covenant; that it is founded on good consideration, and is reasonable and not oppressive.

Decree affirmed, and appeal dismissed at the costs of appellant.

A contract made by one so destitute of reason as not to know the consequences of his act, though his incompetency be produced by purely voluntary intoxication, is voidable.

A. bid at a sale of real estate, and was declared the purchaser ; later he signed the conditions and paid down the hand money; one month later he brought suit to recover the hand-money paid by him, alleging his intoxication at the time of signing and paying. Held, that if he was at that time so intoxicated as not to know what he was doing; if his reason and understanding were suspended, he could

recover.

Error to the court of common pleas of Lehigh county. The facts are sufficiently stated in the syllabus.

Harry G. Stiles and John D. Stiles, for plaintiff in error. “Drunkenness must rise to that degree which may be called excessive where the party is utterly deprived of the use of his reason and understand