
    Justin L. Worthy & another vs. William Jones & others.
    An oral agreement to sell and deliver a flour mill, store and other property, and not to engage in the same business at such place or in such way as to interfere with the business of the purchaser, is complied with by delivering the property and a bill of sale thereof, without a written agreement containing the additional engagement.
    An agreement by two millers, upon selling their mill and store, not to engage.in the same business at such place or in such way as to interfere with the business of the purchaser, is liable to be terminated within a year by the death of the promisors, and therefore not within the statute of frauds, Rev. Sts. c. 74, § 1, cl 5.
    In an action for breach of an agreement to pay cash, and give notes payable at a future day certain with interest, in consideration of a sale and delivery of property, the measure of damages is the contract price of the property sold.
    
      Action of contract, in which the plaintiffs alleged that they had sold and delivered to the defendants their flour mill and fixtures in West Springfield, their store in Springfield and their good will in trade in both; and that the defendants had agreed to pay the sum of $3350 therefor; $500 in cash upon delivery of the property, and the residue in a promissory note of $500 payable on demand with interest, and two other notes of $1175 each, payable in one year with interest; but that though payment had been demanded, the defendants refused to pay the same according to the agreement, or any part thereof. The parties submitted the case to the judgment of this court upon the following facts:
    The plaintiffs sold to the defendants their flour mill and the fixtures therein, and all the personal property and fixtures in the store lately occupied by the plaintiffs in Springfield, and the good will of their business in both places ; and verbally agreed with the defendants that they would not engage or be interested in the flour and milling business at such place or in such way as to interfere with the business to be done by the defendants as millers and traders. In consideration of this sale the defendants agreed to pay to the plaintiffs the sum of $3350, as stated in the declaration, and entered into possession of the property on the 1st of April 1857, and requested the plaintiffs to execute an indenture containing the above agreement, but the plaintiffs refused. On the 3d of April the plaintiffs offered to the defendants a bill of sale of the property and demanded payment in cash and notes as stipulated, but the defendants refused to pay unless the plaintiffs would execute the indenture or an agreement substantially like it; and this suit was brought at June term 1857 of the court of common pleas.
    
      E. W. Bond, for the plaintiffs.
    
      F. Chamberlin, for the defendants.
   Bigelow, J.

We are of opinion that the plaintiffs were not bound to give any contract in writing. The defendants having entered into possession of the property and into full enjoyment of the subject matter of the contract of sale, and a bill of sale having been offered to them by the plaintiffs, the defendants were liable to pay the stipulated consideration therefor. The plaintiffs had never bound themselves to give a contract in writing. Their agreement “ that they would not engage or be interested in the flour and milling business at such place or in such way as to interfere with the business to be done by the defendants as millers and traders ” was an agreement which specified no time for its performance, and did not bind any one but the plaintiffs personally. It was therefore limited to their lives, Which might end within a year. Lyon v. King, 11 Met. 411. Blanding v. Sargent, 33 N. H. 239.

The defendants, not having' fulfilled their contract upon due demand, are at once liable in this action for damages for the breach. As the notes were to bear interest from the time of the delivery of the goods, the measure of such damages is clearly the contract price.

Judgment for the plaintiffs for $3350 and interest.  