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43 Am. St. Rep. 349, 53 N. W. 1090;
On the other hand, it has been held that a statute prohibiting a wife from testifying against her husband except in a criminal action for a crime committed by him against her must be limited to crimes involving personal violence; and consequently that a wife is not authorized to testify against her husband charged with incest, such a crime not being a personal offense against her within the meaning of the statute. State v. Burt (1903) 17 S. D. 7, 62 L.R.A. 172, 106 Am. St. Rep. 759, 94 N. W. 409; Compton v. State (1882) 13 Tex. App. 271, 44 Am. Rep. 703 (incest with stepdaughter); Vickers v. State (1912) 69 Tex. Crim. Rep. 628, 154 S. W. 578 (incest with stepdaughter); State v. Beltner (1910) 60 Wash. 397, 111 Pac. 344. Nor can a wife be forced to indirectly testify against the husband in a criminal prosecution for incest with his stepdaughter, as by showing by another witness statements made by her. Harville v. State (1908) 54 Tex. Crim. Rep. 426, 113 S. W. 283.
crimes involving personal violence, and
V. Bigamy and polygamy. The weight of authority, jurisdictionally considered, at least, is to the effect that bigamy is a crime against the lawful wife within the meaning of a statute making one spouse a competent witness against another in a criminal action or proceeding for a crime committed by one against the other, a number of courts having maintained that such statutes, since they use unqualified language, do not limit the right to testify to prosecutions for
But in a few jurisdictions the courts have refused to follow the rule that bigamy and polygamy are crimes against the wife within the meaning of statutes making one spouse a competent witness against the other in prosecutions for crimes committed by one against the other, and have laid down the rule that bigamy and polygamy are not crimes against the unoffending spouse, but are rather crimes against the marriage relation, so that the stat ute does not render one spouse a competent witness against the other. This was the holding in the following cases: Bassett v. United States (1890) 137 U. S. 496, 34 L. ed. 762, 11 Sup. Ct. Rep. 165, reversing (1887) 5 Utah, 131, 13 Pac. 237, and in effect overruling United States v. Cutler (1888) 5 Utah, 608, 19 Pac. 145 (both polygamy cases); Knapp v. State (1908) 54 Tex. Crim. Rep. 633, 130 Am. St. Rep. 903, 114 S. W. 836; Reed v. State (1908) 55 Tex. Crim. Rep. 136, 114 S. W. 811 (however, in this case the majority of the
court recommended that the legislature should change the law so as to permit the legal spouse to testify); State v. Kniffen (1906) 44 Wash. 485, 120 Am. St. Rep. 1009, 87 Pac. 837, 12 Ann. Cas. 113. In Bassett v. United States (U. S.) supra, the United States Supreme Court, in answering the question, Is polygamy such a special crime against the wife as is contemplated by the statute? and adhering to the general common-law rule that neither the husband nor the wife was a competent witness in a criminal action against the other, and that the Utah statute did not change the rule, among other things, said: "That it [polygamy] is no wrong upon her person is conceded," but "that it is humiliation and outrage to her is evident. If that is the test, what limit is imposed? Is the wife not humiliated, are not her respect and love for her husband outraged and betrayed, when he forgets his integrity as a man and violates any human or divine enactment? Is she less sensitive, is she less humiliated, when he commits murder, or robbery, or forgery, than when he commits polygamy or adultery? A true wife feels keenly any wrong of her husband and her loyalty and reverence are wounded and humiliated by such conduct. But the question presented by this statute is not how much she feels or suffers, but whether the crime is one against her. Polygamy and adultery may be crimes which involve disloyalty to the marital relation, but they are rather crimes against such relation than against the wife; and, as the statute speaks of crimes against her, it is simply an affirmation of the old, familiar, and just common-law rule."
And in Michigan, under a statute providing that one spouse cannot testify against the other except in cases growing out of a "personal wrong or injury done by one to the other," it has been held that the first wife is not a competent witness in a criminal action against her husband for bigamy. People v. Quanstrom (1892) 93 Mich. 254, 17 L.R.A. 723, 53 N. W. 165. This was upon the theory that the statute only applied to cases of violence, either actual or constructive; but two of the five judges dissented upon the ground that the statute should not have been given such a narrow construction, Morse, Ch. J., saying that bigamy "is certainly a personal wrong and injury" to the unoffending spouse.
VI. Intent to commit sexual offense.
A mere intent upon the part of one spouse to commit a sexual crime with or against a third person does not constitute a crime against the other spouse within the meaning of statutory exceptions permitting one spouse to testify against the other in a criminal prosecution for a crime committed against the former. This rule was applied in the reported case (STATE v. WILCOX, ante, 1066) to a prosecution for assault with intent to commit rape, it being maintained that a mere intent to commit a sexual offense cannot be regarded as the equivalent of the accomplished act, and that the statute must be limited to the latter class. And this, although, as shown in the preceding subdivisions, the Iowa courts stoutly maintain that an actual sexual offense by one spouse with a third person is a crime against the other spouse within the meaning of the statute. G. J. C.
(-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 vears 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
Hedge v. Lowe, 47 Iowa, 137; Guerand v. Dandelet, 32 Md. 561, 3 Am. Rep. 164; Pemberton v. Vaughan, 10 Q. B. 87, 16 L. J. Q. B. N. S. 161, 11 Jur. 411; Bradford v. Montgomery Furniture Co. 115 Tenn. 610, 9 L.R.A. (N.S.) 979, 92 S. W. 1104; Ragsdale v. Nagle, 106 Cal. 332, 39 Pac. 628; Fleckenstein Bros. Co. v. Fleckenstein,
N. J. Eq., 53 Atl. 1043; California Steam Nav. Co. v. Wright, 6 Cal. 258, 65 Am. Dec. 511; Kramer v. Old, 119 N. C. 1, 34 L.R.A. 389, 56 Am. St. Rep. 650, 25 S. E. 813; Dunlop v. Gregory, 10 N. Y. 241, 61 Am. Dec. 747; Beard v. Dennis, 6 Ind. 200, 63 Am. Dec. 381; Francisco v. Smith, 143 N. Y. 488, 38 N. E. 980; Diamond Match Co. v. Roeber, 106 N. Y. 473, 60 Am. Rep. 464, 13 N. E. 419; Hitchcock v. Coker, 6 Ad. & El. 438, 112 Eng. Reprint, 167, 1 Nev. & P. 796, 2 Harr. & W. 464, 6 L. J. Exch. N. S. 266; Up River Ice Co. v. Denler, 114 Mich. 297, 68 Am. St. Rep. 480, 72 N. W. 157; Swanson v. Kirby, 98 Ga. 586, 26 S. E. 71; Elves v. Crofts, 10 C. B. 241, 138 Eng. Reprint, 98, 19 L. J. C. P. N. S. 385, 14 Jur. 855; Gompers v. Rochester, 56 Pa. 194.
Mr. T. H. Chapman for appellee. Weaver, J., delivered the opinion of the court:
For a considerable period prior to the transaction hereinafter mentioned the defendant, J. W. Lauman, was the owner and proprietor of an established business, conducting and carrying on a laundry and the work of cleaning and pressing clothes, and also the business of maintaining a station for the buying and shipping of cream. On May 29, 1916, defendant entered into a written contract
of the court.
with one Olive I. Wright for the sale and transfer to the latter of the business aforesaid, together with the machinery, fixtures, and equipment of every kind and character used in connection therewith, and including in such transfer a list of the customers dealing with the defendant. After describing the business and the property in a general way, the contract contains a clause in the following words: "The first party hereby sells the good will of his business and as a part of the consideration. thereof agrees that he will not directly or indirectly enter into a business in Sioux Rapids, Iowa, in competition with said second party, for a period of five years from the date hereof."
The deal was completed, and the said Olive I. Wright entered into possession and control of the business so purchased by her in June, 1916, and continued therein until January 25, 1917, on which date, while said business, property, and plant were still a going concern, she bargained and sold the entire outfit, property, business, and good will thereof to the present plaintiffs, C. P. Sickles and Ruth Sickles. These purchasers, when buying said property, business, and good will, were informed and knew of the terms of the sale from defendant to Wright, and as a part of the purchase they took from Wright an assignment of her contract with defendant, and of all the rights acquired by her thereunder. Such purchase having been consummated, plaintiffs went into possession of said property and business, since business, since which time they
(— Iowa, -, 169 N. W. 670.)
have been the owners and proprietors thereof, including not only the good will acquired or attaching to the said business during the proprietorship of their immediate assignor, but during that of her assignor as well.
The petition in this case, after reciting the facts as aforesaid, alleges that since said purchase by the plaintiffs the defendant, in violation of the terms of his said contract and the terms of the sale of said property and good will, has re-entered the cleaning, pressing, laundry, and cream-buying business in the town of Sioux Rapids, and has endeavored and is now endeavoring to reestablish such business in competition with plaintiffs, and unless restrained from so doing will continue to advertise and solicit patronage and customers away from the plaintiffs, and to interfere with the plaintiffs' business, and cause them irreparable injury. Upon this showing plaintiffs pray the issuance of an injunction restraining defendant from further violation of his said contract and for general relief.
To this petition the defendant demurred because (1) the facts stated by the plaintiffs do not entitle them to the relief demanded; and (2) the contract entered into by the defendant with Wright is not assignable.
The demurrer was sustained, and, plaintiffs electing to stand upon their petition without amendment, it was dismissed, and they appeal. The correctness of the ruling as to the sufficiency of the pleading is the sole question raised by the appeal. The position taken by the appellee in support of the ruling below is that his agreement not to re-enter business at Sioux Rapids is one of which only his immediate purchaser can take advantage, or, in other words, that the right which the first purchaser acquired under that agreement was personal to that purchaser alone, and could not be lawfully or effectually assigned or transferred to a second purchaser of the same business.
This proposition is said to be
justified by certain of our own decisions; no other authorities being cited or called to our attention. Of the cases so cited, Haldeman v. Simonton, 55 Iowa, 145, 7 N. W. 493, does not appear to us to be in point, either in fact or in principle. There the defendant, a physician, in selling his practice, agreed not to "resettle" in the town of Mitchellville, and this was held not to be broad enough to prohibit his practising his profession in that town after removing therefrom and while living in the city of Des Moines. It is perhaps in point upon the proposition that contracts of this kind will be construed with care, not to unduly or unreasonably extend the agreed restriction beyond the expressed or fairly implied intent of the parties; but otherwise it affords no light upon the question before us. The decisions in Streichen v. Fehleisen, 112 Iowa, 612, 51 L.R.A. 412, 84 N. W. 715, and Rapalee v. John Malmquist & Son, 165 Iowa, 251, 145 N. W. 279, both turn upon the identity of the party agreeing to refrain from entering into competition with a business sold. In each case the party making the agreement was a named partnership only, and this was held not to operate as a restriction upon the liberty of an individual member of the firm.
Somewhat in the same line is Barron v. Collenbaugh, 114 Iowa, 71, 86 N. W. 53. There the defendant sold his livery business to Fogarty & Barron, and agreed not to re-enter the business at that place, "during the time said parties of the second part may be engaged in said livery business on the above-named premises." Thereafter one of the purchasers, Fogarty, sold out his interest to his partner, Barron, who continued the business individually. Collenbaugh then re-entered the livery business in competition with Barron, who brought action for an injunction. Relief was denied on the theory that the period of restriction was by the express terms of the agreement limited to the time. Fogarty & Barron should continue
in the business sold to them and when Fogarty sold out or retired the obligation of the defendant under the agreement terminated.
The precedents above cited go to the limit of strict construction in favor of the seller of a business entering into an agreement of this character, farther, indeed, than the writer of this opinion believes is justifiable; but none of them, either expressly or by implication, lays down the rule, contended for by the appellee, that such a contract gives to a purchaser no more than a mere personal right, which he cannot assign to another, to whom he in turn sells the business. There is, indeed, an expression in the Barron Case to the effect that, "had the firm of Fogarty & Barron assigned the contract, no right of action would have passed to their assignee, by reason of the peculiar reading thereof."
If we give proper effect to the concluding clause of that quotation, it is probably not open to material criticism; but in any event it is pure dictum, for the assignability of the contract was not there in question. So far as we have been able to discern, this court has never committed itself to the doctrine for which the appellee contends.
As to property right in the good will of a business, and of its protection in equity, it has been said: "The good will of a trade or business may be the subject of bargain and sale, when connected with any specific stock in trade, or with some valuable secret of trade, or with a well-established stand for business. A court of equity will decree specific performance of a contract for the sale of the good will of a trade or business." Moorehead v. Hyde, 38 Iowa, 382.
signed an equal interest in the
Directly in point upon the question in this case is Hedge v. Lowe, 47 Iowa, 137. There Lowe sold his business to one Vorse by a contract which contained an agreement that he would not re-engage in the same business in the same town for a period of five years without the consent of Vorse. Vorse sold and as
This decision does not appear to have been overruled, nor do we find that its authority has ever been limited or questioned. It is also quite in line with the views expressed on the same subject by nearly all the courts. See Francisco v. Smith, 143 N. Y. 488, 38 N. E. 980; Gompers v. Rochester, 56 Pa. 194; Fleckenstein v. Fleckenstein, -N. J. Eq.
53 Atl. 1043; Public Opinion. Pub. Co. v. Ransom, 34 S. D. 381. 148 N. W. 841, Ann. Cas. 1917A, 1010; Diamond Match Co. v. Roeber, 106 N. Y. 473, 60 Am. Rep. 464, 13 N. E. 419; Up River Ice Co. v. Denler, 114 Mich. 297, 68 Am. St. Rep.