Baumgarten v. . Broadway

77 N.C. 8

• Court: Supreme Court of North Carolina
• Decided: June 5, 1877
• Status: Published

Opinion

EaiRCLotii, J.

The plaintiff alleges that the consideration,: for his money was defendant’s apparatus, his good will, and his agreement not' to engage in photography in Charlotte for the next ten years. The defendant denies the latter part and says, that his written promise not to engage in said-business in ten years, dated July 19th, 1872, was made after-the sale of the apparatus was completed and was without consideration. The subscribing witness to said written promise, one Simpson, in his affidavit sustains the plaintiff’s-allegation, that the agreement not to engage in the same business again in ten years in that place, was a part of the consideration for which the plaintiff paid his money. If" -this®be true, it is immaterial whether the papers were, signed ■and’delivered at the same time or not, or whether they were •delivered- at the time the money was paid. If done separately and at different times they constitute one contract, if •so intended by the parties, which is a question for a jury. We think-upon this preponderance of testimony the injunction was properly continued until the hearing. There is ■nothing in the contract according to the affidavits of either ■party, obnoxious to the rule forbidding contracts in restraint •«of trade. Benjamin on Sales, -119.

No error.

Per Curiam. Judgment affirmed.