Teague v. . Schaub

45 S.E. 762, 133 N.C. 458, 1903 N.C. LEXIS 83

• Court: Supreme Court of North Carolina
• Decided: November 24, 1903
• Status: Published

Opinion

WALKER and DOUGLAS, JJ., dissenting. The plaintiff brought this action to enjoin the defendant, permanently, from practicing medicine in the town of (459) Roxboro and the territory adjacent thereto, for damages arising on an alleged breach of contract in which the defendant had agreed not to practice medicine in Roxboro and the adjacent territory, and for an amount alleged to be due by the defendant for money collected by the defendant belonging to the plaintiff and the defendant as partners in the practice of medicine. In the case on appeal it appears that all other matters in the action had been settled except those pertaining to the defendant's right to practice medicine in Roxboro, and the plaintiff's claim for the defendant's practicing there contrary to his agreement, and that these depended upon the construction of the agreement set out in paragraph 2 of the complaint. His Honor was of the opinion that the contract alleged in the complaint was indefinite as to territory and could not be aided by extrinsic evidence. That part of paragraph 2 of the case necessary to be referred to is as follows: "We, the undersigned, agree to continue the practice of medicine under the firm name of Teague Schaub until 1 December, 1901, Dr. Teague to receive 60 per cent and Dr. Schaub 40 per cent of collections for work done in general practice, except such time as Dr. Schaub shall have entire charge of said practice, then Dr. Schaub shall receive 75 per cent of collections for work done during such time. Some time in December, 1901, Dr. Schaub agrees to take a review course and make application for a hospital course. If said Dr. Schaub gets appointment in a hospital he then releases the entire practice to Dr. Teague. If he (Schaub) does not get the appointment in hospital or the field is not larger then than now, said Schaub will locate elsewhere unless a new contract is made." On the back of the agreement the following was written: "Dr. T. further agrees to leave the field open to Dr. Schaub's entire care for a period of from two to four months. R. J. Teague, O. P. Schaub. Roxboro, N.C. (460) 4 April."

We concur in the view taken by his Honor. This case does not present that of a professional man selling out his good-will and practice to another for a valuable consideration. It is an attempt on the part of the plaintiff to force the defendant to leave the town of Roxboro and thereby get rid of his competition under the provisions of the contract which we have recited. The defendant did not agree to leave Roxboro or the territory in which he actually practiced if he did not get the appointment and in case the field should not be larger than when he made the contract. We cannot tell whether that word "field" meant the receipts from the practice, the number of patients, or the extent of territory. It is indefinite in all three aspects, and we see no way of enforcing the contract. The word "Roxboro" written on the back of the contract, so far as the matter before us is concerned, under the case on appeal, means no more than that the contract was signed at that place.

No error.