292
THE HONGKONG WEEKLY PRESS AND
[April 8, 1899.
asked if Mr. Sutterle was a passenger on board.ent had nothing to do with the maunfacture damages and for farther or other relief, .. The same officer replied "no." Whereupon I of soda water by Messrs. Moalle. Further, think that the justice of the case will be mot asked if there was any passenger on board by that the breach if any was of uurenson by an injunction against the defendant con- the name of John Doe. The officer replied able portions of the contract. The law with tinuing in the employ of Messra. Moslle & Co. "yes" and went with me in search of him. I regard to this sort of covenant is now fairly or any other way acting contrary to such terms found him in the smoking room with Mr. Etzel, well defined. There was a time when such of the agreement of the 9th of February, 1888, a young man whom I was told afterwards was
agreements were considered prima facie void as as are still in force. The exact terms of the & Mr. Spitzel, Mr. H. R. Williams, and two in restraint of trade, but if the covenantee injunction should be drawn up by the plaintiffs others. Recognizing him from a photograph I could show that the covenant was given for suf- and submitted to me in Chambers and it should asked him if his name was Mr. W. F. Sylvester. ficient consideration and that under the circum- be so framed as to allow the plaintiffs to enforce He said "Yes," and I then handed him the stances of the case it was reasonable it was held their claim for liquidated damages should the cerlitied copy of the petition.
defendant disregard the injunction. A. O'D GOURDIN. Hongkong, 5th April, 1899
AGREEM: NTS BETWEEN EMPL: ‹Y| RS AND EMPLOYED.
RESTRICTIONS ON THE EMPLOYÉ EN AGING
IN COMPETING BUSINESS.
In the Supreme Court at Shanghai on the 29th March, Sir Nicholas Hannen, Chief Jus- tice, delivered the following judgment in the snit of A. S. Watson and Co., Limited, v. E. Q. Cooper, in which the plaintiffs appealed from the judgment of the Amoy Consular Court :-
valid. Afterwards the Courts held that they | would not investigate the adequacy of the con. sideration. The rule at present appears to be that if the covenant is not more extensive than is reasonably necessary for the protection of the covenantee notwithstanding its generality it will be enforced. In the present case it would seem reasonable that the plaintiffs should frame and enforce a covenant which would
prevent an employé of theirs in Amoy from joining a firm of that port which competed with them seriously in any important branch of their business. It appears from the evidence, and is indeed a matter of general knowledge to the residents in the Treaty Ports of China that an important brauch of Messrs. Watson & Co.'s business is the manufacture of aerated waters. From the fact that Messrs. Moalle & Co. are This is an appeal from the judgment of the described in their own expresses as
(4 Wine and provincial Court of Amoy in a suit for damages and Spirit merchants, aerated water manufac and other relief instituted by the appellants|tures, etc." it seems to me plain that this firm against the respondent. The appellants are a compete with Messrs. Watson & Co. in this British company carrying on the business of important brauch of their business. In the "chemists and aerated water manufacturers, same express they state that they have manu. wine, spirit and cigar merchants, at Hongkong Factured nerated waters in Amoy for 20 years. and various ports in China. The respondent is and that their sale increases. From this I general manager to Messrs. Moalle & Co.. think it is plain that they compete seriously. It stevedores and ship chandlers at Amoy, deal- is difficult to understand why a firm of ing, amongst other things, in aerated waters stevedores, if they intended to continue to wines spirits and cigars. The plaintiffs in make that the principal branch of their business, their petition claimed £800 from defendaut, should engage as their general manager a being £100 for every mouth during which he pharmaceutical chemist who cannot have had had been in the employ of Messrs. Moalle & Co., any experience as a stevedore. It would seem in violation of a contract dated 9th February, that whatever their business has hitherto been 1888, clause 10 of which runs as follows:
they now intended to devote themselves very seriously to the rated water manufactory in which the defendant's experience at Amoy would be of material help to them.
10-The said Edwin Cooper shall not within twenty years from the date hereof engage directly in the business of a chemist, druggist, Brated water manufacturer, perfumer, wine and spirit or cigar merchant or dealer, or become assistant to any other person carrying on any such business whether wholesale or retail or simply as agent or agents thereto or as merchant either at Hongkong or at any treaty port of China or Japan or at Manila or the Philip pine Islands or the Straits Settlements or Siam or Cochin China without the consent in writing of the said Company under the band of the General Manager first had and in the event of the breach of this clause by the said Edwin
Cooper he shall and will pay to the said Com- pany the sum of (one hundred pounds) £100 sterling for each and every month or part of a month during which he shall have been or shall be so engaged whether directly or indirectly the said sum to be payable and recoverable monthly and every month as and for liquidated damages and not as penalty." They further alleged that they had never consented to the defendant join- ing the said firm of Moalle & Co.
The defendant in his answer alleged, inter alia, that the agreement imposed an unreason. able restraint of trade and was opposed to public policy. He also submitted that the plaintiffs had by their actions admitted his right to violate the covenant. The judgment
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I do not think that the number of trades from which the plaintiffs seek to debar the defendant from carrying on or joining in carry. ing on in Amoy is of itself sufficient to make the covenant void. It must always be question whether the trades, however numerous they ate, form substantial portions of the covenantee's business. I take it that the trades of wine merchants and aerated water
A
manufacturers are substantial portions of the business of Messrs. Watson & Co., and from Exhibits S. and J. it is also plain that these branches are substantial portions of Messrs.
Moalle's business. Messrs. Moalle also seem to sell Bovrill, Aleat Juice, Liebig's, Extracts, &c., all articles which are commonly dealt in by chemists. There is a very large amount of business which is common to the two firms of Watson & Co. and Moalle & Co. and it seems to me reasonable that Mressrs. Watson & Co. should seek to enforce a covenant which nu- doubtedly in its terms prevents the defendant from joiuing such a firm. There is no doubt that the defendant covenanted not to join a firm carrying on the business of aerated water manufacturers or wine spirit and oigar merchants and there is no doubt he has com- mitted a breach of this covenant. The only
of the Court below which consisted of the reason there can be for not enforcing the coven- Provincial Judge and two assessors fouad (one aut is that it would be against public policy to assessor dissenting) for the defendant with costs
do 80.
I do not think that it is-for it is to be on the ground that the restriction went beyond observed that the public are more concerned to what was reasonably necessary for the protection see that solemn contracts are adhered to than to of the plaintiffe, regard being had to the nature see that the individual liberty of this defendant of their business. In the petition of appeal the is not interfered with. I am very nuwilling to appellants alleged, inter alia, that the contract come to a conclusion on what is principally a was divisible aud that the second issue in the matter of fact from the Court balow, but the pleadings whether the plaintiffs had consented to assessors differed in opinion and the question is the admitted breach of the convenant had not been one which does not depend on the demeanour of decided by the Court. Upon this point I may witnesses, but on the inferences to be drawn from at once say that it is plain that the plaintiffs admitted or proved facts. As I have no doubt never consented to the breach of Clause 10. in my mind that the covenant as it is sought to The Court below. did not decide the point bebe enforce is not more extensive than is rea- cause in the view which it took of the case it was nunecessary to decide. it. In his answer the respondent alleged that he was employed by the appellants as dispensing chemist and that his actions could not be restrained when
sonably necessary for the protection of the plaintiffs I feel bound to enforce it. The result will be that the judgment, order and decree of the Lower Court will be set aside with costs here and in the Court below. In the original
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HONGKONG.
HI.E. the (tovernor's assent to the St. John's Cathedral Ordinance is gazetted.
New rules with reference to petroleum in bulk are published in the Gazette.
Herr Heinze, the German Vico-Consul Hongkong, has been appointed Consul
Tarsni
There were 1,298 visitors to the City Hall Museum last week, of whom 123 were Euro- peans.
A charge is in future to be made for the interception of postal matter, $1 for matter arriving by any particular mail, and $5 per month,
H. E. Lai-Wing-Tu, late Chinese Consul General in Cuba, left on 4th April by the Yuen- sang for Manila to take up his duties as Consul- General in the Philippine Islands.
Consequent upon the departure of Sir John Carrington the Hon. W. M. Goodman has been appointed Acting Chief Justice and the Hon. H. E. Pollock Acting Attorney-General.
The return of the number of cases of com- municable diseases notified as occurring in the colony last week is as follows:-Bubonic plague, 7 cases, 7 deaths; smallpox, 4 cases, 1 death.
On Monday au Indian was jumping off the ferry launch at Kowloon before she was properly moored, when he slipped and was caught between the launch and the wharf and badly crushed.
On Sunday afternoon a private in the Welsh Regiment, named John Horgan, fell over the verandah at the Barracks in Queen's road and fractured his skull so seriously that he died on the following day.
The Hougkoug Football Club have handed $74.70 to the Treasurer of the Hongkong Foot- bell Challenge Shield, this sum being the balance over expenditure resulting from the sale of seats in the Grand Staud at the final on March 25th last.
H. M. S. Narcissus, which left on Saturday morning for England, was obliged to return to port after six hours' steaming owing to one of her discharge pipes bursting. Fortunately no one was injured. The vessel has gone into dook to have the defect made good.
Before learing for home on the 5th April the Chief Justice (Sir John Carrington) met the whole of the staff of the Registry and the Land Office in his Chambers at the Supreme Court and bade them au revoir, they in return wishing him bon voyage.
We are informed by Messrs. John D. Hum. phreys & Son, General Managers of Olivers Freehold Mines, Limited, that they have received the following telegram giving the result of the Eureka Mina olean-up for the month of March" 675 tons crushed for a yield of 350 onuces smelted gold."--
Coutts, who had been a popular member of the On the 6th April the remains of Sergeant
Hongkong Police Force for the last ten years, were interred in the Happy Valley in the presence of many of his late comrades. The Sergeant, who was only 34 years of age, died in Hospital, where he had been for three weeks, peritonitis being the cause of death:
Sir John and Lady and Miss Carrington left. for home on the 5th April, Sir John by the Cana- dian-Pacific route and Lady and Miss Carring ton by the P. & O. steamer Formosa. The best wishes of the community will accompany the popular Chief Justice and his family, and a hearty welcome will await them on their return.
The Acting Secretary of the Punjom Mining Co., Limited, advises us that he has received the following telegram from the Mines giving the result of the March Clean up."The mill ran 29 days, crashing 3,300 tons yielding 211 os, of smelted gold. The bullion realised by oyanid-
in any other capacity and that respond. petition a claim is made for a certain sum asing is estimated to value £80 sterling.
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