
    Foster H. Thompson vs. Marcus D. Means.
    A bond, by which the obligor bound himself not to settle or continue as a practitioner of medicine within fifteen miles of Preston, after the first day of March next thereafter, if given upon a sufficient consideration, is a valid obligation ; and the purchase of the obligor’s house, and one half of his medicine, jars and bottles, by the obligee, for seven hundred dollars, recited in the bond as the consideration of its execution, will be a sufficient consideration.
    To an action on such a bond, alleging as a breach, that the obligor had practised within fifteen miles of Preston, the plea of performance generally will be bad, because the covenant was negative ; and a replication, repeating the breach assigned, would be improper.
    
      So the plea to such a breach, that the obligor had settled as a practitioner of medicine at a greater distance than fifteen miles from Preston, and had not been a practitioner of medicine within that distance by settling, &c. is evasive, and not an answer to the breach, that he did practise within fifteen miles, &c. This the defendant should have directly negatived ; and a replication to such a plea, repeating the breach assigned, would be improper; and so a rejoinder to such replication, re-averring in substance the allegations of the plea, would be bad ; as not tending to an issue, and not being responsive to the whole cause of action.
    In error from the circuit court of Yalabusha county; Hon. Francis M. Rogers, judge.
    Foster H. Thompson sued Marcus D. Means in an actiou of debt upon the following instrument.
    “ The state of Mississippi, Yalabusha county, Feb. 27, 1844. Foster H. Thompson has this day purchased of me my house and lot in the town of Preston, and also one half of my medical jars and bottles, for which he has obligated himself to pay to me the sum of seven hundred dollars. In consideration of the above purchase, I hereby obligate myself in the penal sum of fourteen hundred dollars unto the said Foster H. Thompson, not to settle or continue as a practitioner of medicine within fifteen miles of Preston after the first day of March next. Given under my hand and seal, this day and year above mentioned.
    M. D. Means. (Seal.) ”
    The breaches in substance are, that the defendant did, after the time prescribed, settle as a practitioner of medicine within fifteen miles of the town of Preston; and that he continued to practise medicine within the prescribed distance. The first plea was, that the defendant had well and truly kept his covenant by settling himself at Coffeeville, sixteen miles from Preston, on the 6th of June, 1845, and concluded with a verification.
    The second plea says, that defendant, on the 6th of June, 1845, settled as a practitioner of medicine at Coffeeville, sixteen miles from Preston, and that he had not been a practitioner of medicine by settling at any other place within fifteen miles of Preston since the covenant. This also concluded with a verification.
    
      The plaintiff below replied, to the first plea, that defendant continued as a practitioner of medicine within fifteen miles of Preston since the 1st of March, 1845, and concluded with a verification.
    To the second plea, also, the same replication.
    To which the defendant rejoined, to the first replication, that previous to the 1st of March, 1845, he was living in the town of Preston; after the 1st of March, 1845, he moved therefrom to Memphis, more than fifteen miles distant, and had not continued as a practitioner of medicine in Preston, nor has he since that time settled as such within fifteen miles of Preston; and concluded with a verification.
    To second replication he says, that since the first of June, 1845, he settled in Coffeeville, more than fifteen miles from Preston; and that since that date he has not continued as a practitioner by settling elsewhere than Coffeeville; and concluded with a verification.
    To both of these rejoinders plaintiff demurred,
    1. Because the rejoinder is a departure. 2. It neither traverses nor confesses and avoids the replication. 3. It tenders an immaterial issue.
    Joinder in demurrer and judgment was rendered for the defendant by the court below, and the plaintiff sued out this writ of error.
    
      Waul, for plaintiff in error.
    1. The obligation, as set forth, is an agreement between two persons that restrains one of them from exercising a particular business or profession within certain limits, upon sufficient consideration, and is valid. Hurlstone on Bonds, 14; Mitchell v. Reynolds, 1 P. Wins. R. 181; Comyn on Con. 438; Story on Con. § 190, 191, 192, (1st ed.) and cases cited.
    Nor can it be successfully urged that the limitation of time is indefinite, for in Davis v. Mason, 5 Term R. 118, it is decided, that such an agreement is valid, although the duration is indefinite. See also Archer v. Marsh, 6 Adol. & El. 966, and cases above cited.
    
      The case of Peirce v. Woodward, 6 Pick. 206, is analogous, and it is decided that the consideration of purchasing out the shop is sufficient to render the obligation valid. See also Bunn v. Guy, 4 East, 190; Nobles v. Bates, 7 Cow. 307.
    The obligation being consonant with public policy, we maintain that the construction of the instrument should be made which would carry out the intention of the parties, and courts, for this purpose, always construe such contracts liberally. Woods v. Dennett, 2 Stark. 89; Mallen v. May, 11 Mees. & Welsb. 653; Story on Con. § 554, (2d ed.)
    2. In this cause the pleas of defendant do not negative the breach laid in the declaration, the condition of the bond being in the disjunctive. That the defendant “ shall not settle or continue as a practitioner of medicine within fifteen miles,” and the condition of the bond was violated so soon as defendant prac-tised as a physician within the distance prescribed. The defendant contends that he should not settle as a practitioner within the limits, but that he had full power to practise.
    The plaintiff, when the obligation was entered into, could have but one motive; it was to prevent the annoyance or competition of defendant as a physician within the limits; it was his practising as a physician, and not his settling, that he desired to guard against.
    The demurrer will reach back to the pleas, and they are no sufficient answer to the declaration.
    
      A. H. Davidson, for defendant in error.
    1. The declaration is defective. It shows, 1st, that the promise sued on, was founded upon a past and executed consideration. 3 Pick. 207, 212; 7 Conn. 404; 2 lb. 57; 1 Caines, 583 ; Str. 933.
    2d. There was no mutuality in the contract, plaintiff having received a full consideration for what he was to pay under the first contract, and having given none whatever for what defendant was to do under the last. 1 Caines, 583; 12 J. R. 190, 397.
    3d. That the writing sued on was made on the same day, but subsequent to another contract between the same parties, viz., the sale by defendant to plaintiff of his house and lot, &c., and it does not appear on the face of the instrument sued on, nor is it averred in the declaration, nor was there any proof that the subsequent undertaking of defendant constituted an inducement to said sale ; but the only connection that is shown between the two, is, that the former, which was a past and executed contract, constituted the only consideration for the promise sued on, which is not sufficient. See 6 Yerg. 423; 1 Caines, 683, and authorities there cited; 7 Cow. 307; 6 Pick. 206.
    2. If, however, the consideration shall be adjudged sufficient, the inquiry then presents itself, what was the intention of the parties to the contract? What were their relative situations, motives, and the end intended to be accomplished by it? It appears either expressly upon the face of the contract, or may be fairlyinferred therefrom, that both parties were practising physicians; that one (defendant) was at the time settled as such in the town of Preston, and that plaintiff desired to settle there as such, and to avoid the competition of defendant, the sale of the house and lot- and medical jars and bottles, &c., with the use of the term “ continue as a practitioner of medicine,” shows conclusively that defendant was settled there as a practitioner of medicine; while the same purchase by plaintiff, and the promise exacted of defendant, “not to settle or continue as a practitioner of medicine within fifteen miles of Preston,” shows what his object was. It would seem to follow, then, that the intention of the parties was to put an end to defendant’s then existing settlement and practice of medicine at Preston; that he should not “ continue his settlement there as a practitioner of medicine after the 1st of March next,” and to prevent a future settlement within fifteen miles. Now the whole contract must be made to harmonize, if possible; under the construction insisted on by the plaintiffs, it is contradictory, and an alteration of it illegal. It expressly gives him the right to settle, and to settle as a practitioner of medicine, so that it be not within fifteen miles of Preston. The contract here gives him the right to settle at the distance of fifteen miles as a practitioner of medicine, and must carry with it, by necessary intendment and implication, the usual rights and privileges of a practising physician, among which is the right to practice his profession in the neighborhood around the place at which he locates.
    3. But if the contract be understood to mean, that defendant would not continue his then existing settlement and practice at Preston, after the 1st of March thereafter, nor settle for that purpose after that time within fifteen miles of said town, then there is nothing inconsistent, contradictory, or illegal in it; it harmonizes in all its parts, and corresponds with the situation and probable motives of the parties.
    If this be the true construction, then defendant could only have violated the contract by 1st, continuing his settlement and practice at Preston after 1st of March, 1844; and 2d, by making a new settlement thereafter arid for ¿that purpose, within fifteen miles of Preston.
   Per Curiam.

This action is debt on a bond by which the defendant bound himself not to settle or continue as a practitioner of medicine within fifteen miles of Preston after the 1st day of March next thereafter. The breach is, that defendant did settle and continue to practice medicine within the prescribed distance, after the specified time.

In the course of the pleadings, a demurrer was interposed, and it is now insisted that the bond which is set out in the declaration, does not furnish a cause of action.

The validity of such bonds is not now an open question. They have been sustained on the fullest consideration. Mitchell v. Reynolds, 1 P. Wms. 181; Chesman v. Nainby, 1 Bro. P. C. 234; Davis v. Mason, 5 Term R. 128. They must, however, be made on a sufficient consideration, and must, moreover, impose a restraint only as to a particular place, or within a defined limit.

The recital shows, that the plaintiff had purchased defendant’s house in Preston, and also one half of his medicine jars and bottles for $700, and the bond expresses to be given in consideration of the above purchase. This must be construed as one entire transaction; and not as a bond given for a past consideration. The bond may have been a main inducement to the purchase, and the price was probably enhanced on account of the agreement. It is like the case of Mitchell v. Reynolds. The consideration, then, was sufficient.

The several pleas, replications, &c., are all defective. The defendant commenced by pleading performance generally. This he should not have done, because the covenant was negative, (Stephen’s Pleading, 367;) and because the plaintiff had assigned a breach in the declaration, and could not reply without repeating the declaration. The plaintiff, however, improperly replied by repeating the breach which had already been assigned.

The second plea of defendant was bad, because it avers, that defendant settled as a practitioner of medicine at a greater distance than fifteen miles, and has not been a practitioner of medicine within that distance by settling, &c. This is evasive, and does not answer the whole cause of action. The defendant bound himself not to practice medicine within fifteen miles of Preston; it is averred that he did do so. This must be directly answered. The plaintiff improperly replied to this plea, by reasserting that the defendant continued as a practitioner of medicine within fifteen miles. There is no answer to the plea, nor did it present an issue.

The defendant rejoined more at length, but repeats in substance and effect his second plea; the point was still evaded. To the second replication he also rejoined, by repeating the substance of his second plea, and concluded both rejoinders with a verification. Every step the parties took carried them further from an issue.

The plaintiff demurred to the rejoinders, which the court overruled, and the plaintiff refused to answer further. There was certainly abundant ground of demurrer on either side. It was, therefore, improperly overruled. As the cause must necessarily be remanded, an opportunity may be had in the court below to amend the pleadings.

Judgment reversed, and cause remanded.  