.

43 Am. St. Rep. 349, 53 N. W. 1090; crimes involving personal violence, and State v. Shultz (1916) 177 Iowa, 321, that the statute means that one spouse 158 N. W. 539. In State v. Chambers is competent to testify against the (Iowa) supra, where a husband was other in any criminal prosecution prosecuted for incest with his step- where he or she is the individual daughter, it was said that it was the particularly and directly injured or affact of the marital relation that made fected by the crime in question, which, the act charged constitute the aggra- in the case of bigamy, is the private vated crime of incest, and that were it wrong or injury to the innocent spouse not for this relation, such act would included in the public crime of bigamy. have constituted a much less grave of- The following cases adhere to this genfense; wherefore the crime charged eral rule: Schell v. People (1918) was surely as much a crime against the Colo. -, L.R.A.1918F, 954, 173 Pac. wife of the accused, if not more so, 1141; State v. Sloan (1880) 55 Iowa, than would be a crime of adultery or 217, 7 N. W. 516; State v. Hughes bigamy, both of which had been held (1882) 58 Iowa, 165, 11 N. W. 706; to be crimes against the wife within Hills v. State (1901) 61 Neb. 589, 57 the meaning of the Iowa statute. L.R.A. 155, 85 N. W. 836 (holding that

On the other hand, it has been held bigamy is a crime especially against that a statute prohibiting a wife from the wife, and not merely against the testifying against her husband except marital relation); United States v. Oroin a criminal action for a crime com- sa (1906) 7 Philippine, 247; United mitted by him against her must be States v. Cutler (1888) 5 Utah, 608, 19 limited to crimes involving personal Pac. 145 (however, this decision has violence; and consequently that a wife been in effect overruled, a similar deis not authorized to testify against her cision in United States v. Bassett husband charged with incest, such a (1887) 5 Utah, 131, 13 Pac. 237, havcrime not being a personal offense ing been carried to the United States against her within the meaning of the Supreme Court and reversed in (1890) statute. State v. Burt (1903) 17 S. D. 137 U. S. 496, 34 L. ed. 762, 11 Sup. 7, 62 L.R.A. 172, 106 Am. St. Rep. 759, Ct. Rep. 165). 94 N. W. 409; Compton v. State (1882) But in a few jurisdictions the courts 13 Tex. App. 271, 44 Am. Rep. 703 (in- have refused to follow the rule that cest with stepdaughter); Vickers v. bigamy and polygamy are crimes State (1912) 69 Tex. Crim. Rep. 628,

against the wife within the meaning of 154 S. W. 578 (incest with stepdaugh- statutes making one spouse a competer); State v. Beltner (1910) 60 Wash.

tent witness against the other in pros397, 111 Pac. 344. Nor can a wife be

ecutions for crimes committed by one forced to indirectly testify against the

against the other, and have laid down husband in a criminal prosecution for

the rule that bigamy and polygamy are incest with his stepdaughter, as by

not crimes against the unoffending showing by another witness statements made by her. Harville v. State (1908)

spouse, but are rather crimes against 54 Tex. Crim. Rep. 426, 113 S. W. 283.

the marriage relation, so that the stat

ute does not render one spouse a comV. Bigamy and polygamy.

petent witness against the other. This The weight of authority, jurisdic- was the holding in the following cases: tionally considered, at least, is to the Bassett v. United States (1890) 137 U. effect that bigamy is a crime against S. 496, 34 L. ed. 762, 11 Sup. Ct. Rep. the lawful wife within the meaning of 165, reversing (1887) 5 Utah, 131, 13 a statute making one spouse a compe

Pac. 237, and in effect overzuling Unittent witness against another in a crim- ed States v. Cutler (1888) 5 Utah, 608, inal action or proceeding for a crime 19 Pac. 145 (both polygamy cases); committed by one against the other, a Knapp v. State (1908) 54 Tex. Crim. number of courts having maintained Rep. 633, 130 Am. St. Rep. 903, 114 S. that such statutes, since they use un- W. 836; Reed v. State (1908) 55 Tes. qualified language, do not limit the Crim. Rep. 136, 114 S. W. 811 (howright to testify to prosecutions for ever, in this case the majority of the

a

court recommended that the legislature And in Michigan, under a statute should change the law so as to permit providing that one spouse cannot testithe legal spouse to testify); State v. fy against the other except in cases Kniffen (1906) 44 Wash. 485, 120 Am. growing out of a "personal wrong or St. Rep. 1009, 87 Pac. 837, 12 Ann. Cas. injury done by one to the other,” it has 113. In Bassett v. United States (U. been held that the first wife is not a S.) supra, the United States Supreme competent witness in a criminal action Court, in answering the question, Is against her husband for bigamy. Peopolygamy such a special crime against ple v. Quanstrom (1892) 93 Mich. 254, the wife as is contemplated by the stat- 17 L.R.A. 723, 53 N. W. 165. This was ute? and adhering to the general com- upon the theory that the statute only mon-law rule that neither the husband applied to cases of violence, either acnor the wife was a competent witness

tual or constructive; but two of the in a criminal action against the other,

five judges dissented upon the ground and that the Utah statute did not

that the statute should not have been change the rule, among other things,

given such narrow construction, said: "That it [polygamy] is no wrong

Morse, Ch. J., saying that bigamy "is

certainly a personal wrong and injury" upon her person is conceded,” but “that

to the unoffending spouse. it is humiliation and outrage to her is evident. If that is the test, what limit VI. Intent to commit sexual offense. is imposed? Is the wife not humiliated,

A mere intent upon the part of one are not her respect and love for her spouse to commit a sexual crime with husband outraged and betrayed, when or against a third person does not conhe forgets his integrity as a man and stitute a crime against the other spouse violates any human or divine enact- within the meaning of statutory exment? Is she less sensitive, is she less ceptions permitting one spouse to testihumiliated, when he commits murder, fy against the other in a criminal prosor robbery, or forgery, than when he ecution for a crime committed against commits polygamy or adultery? A true the former. This rule was applied in wife feels keenly any wrong of her hus- the reported case (STATE V. Wilcox, band and her loyalty and reverence are ante, 1066) to a prosecution for assault wounded and humiliated by such con- with intent to commit rape, it being duct. But the question presented by maintained that a mere intent to comthis statute is not how much she feels mit a sexual offense cannot be regardor suffers, but whether the crime is one ed as the equivalent of the accomplished against her. Polygamy and adultery act, and that the statute must be limmay be crimes which involve disloyalty ited to the latter class. And this, alto the marital relation, but they are though, as shown in the preceding subrather crimes against such relation divisions, the Iowa courts stoutly mainthan against the wife; and, as the stat- tain that an actual sexual offense by one ute speaks of crimes against her, it is spouse with a third person is a crime simply an affirmation of the old, fa- against the other spouse within the miliar, and just common-law rule.” meaning of the statute. G. J. C.

C. P. SICKLES et al., Appts.,

v.
J. W. LAUMAN.

Ioua Supreme Court – December 14, 1918.

(-Iowa, -, 169 N. W. 670.)

, Covenant - not to engage in business — assignment.

A covenant by the vendor of a business not to re-engage in such business in the town where it is located for a period of years may be enforced

by one who purchases the business from the vendee and takes an assignment of the covenant, although the covenant does not run to assigns of the original vendee.

[See note on this question beginning on page 1078.]

APPEAL by plaintiffs from a judgment of the District Court for Buena Vista County (Hobson, J.) sustaining a demurrer to and dismissing an action brought to enjoin defendant from re-engaging in business in competition with plaintiffs in alleged violation of a written contract. Reversed.

The facts are stated in the opinion of the court.
Mr. F. F. Faville, for appellants: with one Olive I. Wright for the sale

The contract was assignable and can and transfer to the latter of the busibe enforced in the hands of an assignee. ness aforesaid, together with the maHedge v. Lowe, 47 Iowa, 137; Guer

chinery, fixtures, and equipment of and v. Dandelet, 32 Md. 561, 3 Am.

every kind and character used in Rep. 164; Pemberton v. Vaughan, 10 Q. B. 87, 16 L. J. Q. B. N. S. 161,

connection therewith, and including 11 Jur. 411; Bradford v. Montgomery

in such transfer a list of the customFurniture Co. 115 Tenn. 610, 9 L.R.A.

ers dealing with the defendant. Aft(N.S.) 979, 92 S. W. 1104; Ragsdale er describing the business and the y. Nagle, 106 Cal. 332, 39 Pac. 628; property in a general way, the conFleckenstein Bros. Co. v. Fleckenstein, tract contains a clause in the follow

N. J. Eg. 53 Atl. 1043; Cali- ing words: “The first party hereby fornia Steam Nav. Co. v. Wright, 6

sells the good will of his business Cal. 258, 65 Am. Dec._511; Kramer v. Old, 119 N. C. 1, 34 L.R.A. 389, 56

and as a part of the consideration Am. St. Rep. 650, 25 S. E. 813; Dun

thereof agrees that he will not dilop v. Gregory, 10 N. Y. 241, 61 Am.

rectly or indirectly enter into a busiDec. 747; Beard v. Dennis, 6 Ind. 200,

ness in Sioux Rapids, Iowa, in com63 Am. Dec. 381; Francisco v. Smith, petition with said second party, for 143 N. Y. 488, 38 N. E. 980; Diamond a period of five years from the date Match Co. v. Roeber, 106 N. Y. 473, hereof." 60 Am. Rep. 464, 13 N. E. 419; Hitch

The deal was completed, and the cock v. Coker, 6 Ad. & El. 438, 112

said Olive I. Wright entered into Eng. Reprint, 167, 1 Nev. & P. 796, 2 Harr. & W. 464, 6 L. J. Exch. N.

possession and control of the busi. S. 266; Up River Ice Co. v. Denler,

ness so purchased by her in June, 114 Mich. 297, 68 Am. St. Rep. 480, 72

1916, and continued therein until N. W. 157; Swanson v. Kirby, 98 Ga. January 25, 1917, on which date, 586, 26 S. E. 71; Elves v. Crofts, 10 while said business, property, and C. B. 241, 138 Eng. Reprint, 98, 19 plant were still a going concern, she L. J. C. P. N. S. 385, 14 Jur. 855; bargained and sold the entire outfit, Gompers v. Rochester, 56 Pa. 194.

property, business, and good will Mr. T. H. Chapman for appellee. thereof to the present plaintiffs, C.

Weaver, J., delivered the opinion P. Sickles and Ruth Sickles. These of the court:

purchasers, when buying said propFor a considerable period prior erty, business, and good will, were to the transaction hereinafter men- informed and knew of the terms of tioned the defendant, J. W. Lauman, the sale from defendant to Wright, was the owner and proprietor of an

and as a part of the purchase they established business, conducting and took from Wright an assignment of carrying on a laundry and the work her contract with defendant, and of of cleaning and pressing clothes, and all the rights acquired by her there. also the business of maintaining a under. Such purchase having been station for the buying and shipping consummated, plaintiffs went into of cream. On May 29, 1916, defend possession of said property and ant entered into a written contract business,

business, since which time they

(- Iowa, — 169 N. W. 670.) have been the owners and pro- justified by certain of our own deprietors thereof, including not only cisions; no other authorities being the good will acquired or attaching cited or called to our attention. Of to the said business during the pro- the cases so cited, Haldeman v. prietorship of their immediate as- Simonton, 55 Iowa, 145, 7 N. W. 493, signor, but during that of her as- does not appear to us to be in point, signor as well.

either in fact or in principle. There The petition in this case, after re- the defendant, a physician, in sellciting the facts as aforesaid, alleges ing his practice, agreed not to “rethat since said purchase by the settle” in the town of Mitchellville, plaintiffs the defendant, in violation and this was held not to be broad of the terms of his said contract and enough to prohibit his practising his the terms of the sale of said prop- profession in that town after reerty and good will, has re-entered moving therefrom and while living the cleaning, pressing, laundry, and in the city of Des Moines. It is percream-buying business in the town haps in point upon the proposition of Sioux Rapids, and has endeay- that contracts of this kind will be ored and is now endeavoring to re- construed with care, not to unduly establish such business in competi- or unreasonably extend the agreed tion with plaintiffs, and unless re- restriction beyond the expressed or strained from so doing will continue fairly implied intent of the parties; to advertise and solicit patronage but otherwise it affords no light upand customers away from the plain- on the question before us. The detiffs, and to interfere with the plain- cisions in Streichen v. Fehleisen, 112 tiffs' business, and cause them ir- Iowa, 612, 51 L.R.A. 412, 84 N. W. reparable injury. Upon this show

Upon this show- 715, and Rapalee v. John Malmquist ing plaintiffs pray the issuance of & Son, 165 Iowa, 251, 145 N. W. 279, an injunction restraining defendant both turn upon the identity of the from further violation of his said

party agreeing to refrain from encontract and for general relief. tering into competition with a busi

To this petition the defendant de- ness sold. In each case the party murred because (1) the facts stated making the agreement was a named by the plaintiffs do not entitle them partnership only, and this was held to the relief demanded; and (2) the not to operate as a restriction upon contract entered into by the defend- the liberty of an individual member ant with Wright is not assignable. of the firm.

The demurrer was sustained, and, Somewhat in the same line is plaintiffs electing to stand upon Barron v. Collenbaugh, 114 Iowa, their petition without amendment, it 71, 86 N. W. 53. There the defendwas dismissed, and they appeal. ant sold his livery business to FoThe correctness of the ruling as to garty & Barron, and agreed not to the sufficiency of the pleading is the re-enter the business at that place, sole question raised by the appeal. “during the time said parties of the

The position taken by the appellee second part may be engaged in said in support of the ruling below is that livery business on the above-named his agreement not to re-enter busi- premises."

premises." Thereafter one of the ness at Sioux Rapids is one of which purchasers, Fogarty, sold out his only his immediate purchaser can interest to his partner, Barron, who take advantage, or, in other words, continued the business individually. that the right which the first pur- Collenbaugh then re-entered the livchaser acquired under that agree- ery business in competition with ment was personal to that purchaser Barron, who brought action for an alone, and could not be lawfully or injunction. Relief was denied on effectually assigned or transferred the theory that the period of restricto a second purchaser of the same tion was by the express terms of business.

the agreement limited to the time This proposition is said to be Fogarty & Barron should continue in the business sold to them and signed an

signed an equal interest in the when Fogarty sold out or retired business and contract to one Hedge, the obligation of the defendant un- and later sold and assigned his reder the agreement terminated. maining interest therein to one El

The precedents above cited go to liott. Thus the entire interest of the the limit of strict construction in original purchaser in the business favor of the seller of a business and good

good will

was eliminated. entering into an agreement of this Thereafter Lowe resumed business character, farther, indeed, than the of a like nature in the same town, writer of this opinion believes is and in defense to an action against justifiable; but none of them, either him for an injunction he raised the expressly or by implication, lays very objection on which appellee down the rule, contended for by the now relies, that the contract between appellee, that such a contract gives him and Vorse was personal and to a purchaser no more than a mere could not be assigned. The court personal right, which he cannot as- held the point not well taken, saysign to another, to whom he in turn ing: “If the agreement not to ensells the business. There is, indeed, gage in the agricultural implement an expression in the Barron Case to business was of sufficient value to the effect that, "had the firm of constitute in part an inducement to Fogarty & Barron assigned the con- Vorse to purchase, it must be adtract, no right of action would have mitted that it might be equally valupassed to their assignee, by reason able to a vendee of Vorse. If Vorse, of the peculiar reading thereof." because of this agreement, was in

If we give proper effect to the duced to purchase, no good reason concluding clause of that quotation, can be given why Vorse should not it is probably not open to material be able to avail himself of this criticism; but in any event it is pure agreement as a means of effecting a dictum, for the assignability of the sale. The question here is, not contract was not there in question. whether this agreement may be the So far as we have been able to dis- subject of transfer cern, this court has never committed in the abstract, but not to engage

Covenantitself to the doctrine for which the whether it may be in business

. appellee contends.

transferred with the As to property right in the good business to which it originally perwill of a business, and of its pro- tained,”—citing California Steam tection in equity, it has been said: Nav. Co. y. Wright, 6 Cal. 258, 65 “The good will of a trade or busi- Am. Dec. 511, and 8 Cal. 585; Gueness may be the subject of bargain rand v. Dandelet, 32 Md. 569, 3 Am. and sale, when connected with any Rep. 164. specific stock in trade, or with some This decision does not appear to valuable secret of trade, or with have been overruled, nor do we find a well-established stand for busi- that its authority has ever been limness. A court of equity will decree ited or questioned. It is also quite specific performance of a contract in line with the views expressed on for the sale of the good will of a the same subject by nearly all the trade or business.” Moorehead v. courts. See Francisco v. Smith, 143 Hyde, 38 Iowa, 382.

N. Y. 488, 38 N. E, 980; Gompers Directly in point upon the ques- v. Rochester, 56 Pa. 194; Fleckention in this case is Hedge v. Lowe, stein v. Fleckenstein, - N. J. Eq. 47 Iowa, 137. There Lowe sold his - 53 Atl. 1043; Public Opinion business to one Vorse by a contract Pub. Co. v. Ransom, 34 S. D. 381, which contained an agreement that 148 N. W. 841, Ann. Cas. 1917A, he would not re-engage in the same 1010; Diamond Match Co. v. Roeber, business in the same town for a 106 N. Y. 473, 60 Am. Rep. 464, 13 period of five years without the con- N. E. 419; Up River Ice Co. v. Densent of Vorse. Vorse sold and as- ler, 114 Mich. 297, 68 Am. St. Rep.