#### Robbins v. Plant.

Opinion delivered July 4, 1927.

*643• Tingling & Taylor and Brundiclge & Neelly, for appellant.

John E. Miller and Culbert L. Pernee, for appellee.

Hart, C. J.,

(after stating the facts). There is no hard-and-fast rule in this State as to what contracts are void as being in restraint of trade, and each case must be judged according to its own facts and circumstances. It is also well settled that a person may legally purchase the business of another for the purpose of removing competition, with an agreement on the part of the seller not to- carry on the same business in the same place for a limited period of time. Covenants of this kind operate to prevent the seller from engaging in a business which he sells, so as to protect the buyer in the enjoyment of what he has purchased and to enable the seller to get the full value of his property, including the good will of his business. In general this does not injure the public, because the business is open to all other persons, and there is little danger that it will suffer harm, if the busi- ■ ness is profitable. The agreement could in no sense prevent other persons from entering'the business, if they should see it was a profitable- one. Shapard v. Lesser, 127 Ark. 590,193 S . W. 262, and cases cited; Wakenight v. Spear & Rogers, 147 Ark. 342, 227 S. W. 419; and McSpadden v. Leonard, 159 Ark. 193, 251 S. W. 694.

The closest question in the case at bar is whether or not the $10,000 mentioned in the contract should be treated as a penalty or as liquidated damages. It is the settled law of this State that, where the damages for breach- of contract are-in- their nature uncertain and *644difficult of ascertainment, the amount to be paid may be stipulated for by the terms of the contract. In the early case of Williams v. Green, 14 Ark. 315, the court said that parties may stipulate the amount of damages for breach of an agreement “not to carry on a rival trade or business, within certain limits, where the .breach may consist in acts of frequent recurrence, and the damages are in some degree conjectural.” The case of Nilson v. Jonesboro, 57 Ark. 169, 20 S. W. 1093, is a leading case on the difference between liquidated damages land a penalty. In discussing the question the court said:

> “The authorities, however, show that, where the intention to liquidate the damages is not obvious, the stipulated sum will be given the effect of a penalty if it exceeds the measure óf a just compensation and the actual damage sustained is capable of proof. (Citing authorities). But, where the contract is of,such a nature that the damage caused by its breach would be uncertain and difficult of proof, the sum named by the parties is generally held to be liquidated damages, if the form and language of the instrument are not unfavorable to that construction and the magnitude . of the sum does not forbid it.”

As said in Blackwood v. Liebke, 87 Ark. 545, 113 S. W. 210, “But the question is not as to the status of the parties at the time when the contract terminated, but as to the -status of the parties at the time they made the contract. It may be, as the contract works out, that it would be easy to ascertain the damages for the breach of it, or to prove that there were none. But, if the status of the parties at the time of the contest was such that it would be difficult or impossible to have anticipated the damage for a breach of it, and there was a positive element of damage, then,' under the authorities, there is no reason why that may not be anticipated and contracted for in advance.”

To the same effect see Wait v. Stanton, 104 Ark. 9, 147 S. W. 446; Welbourn v. Kee, 134 Ark. 361, 204 S. W. 220; Suter v. Mason, 147 Ark. 505, 227 S. W. 782; Foran v. Wisconsin & Arkansas Lumber Co., 156 Ark. 346, 246 *645 S. W. 848; and McSpadden v. Leonard, 159 Ark. 193, 251 S. W. 694.

The same rule has been adopted by the Supreme Court of the United States, and the rule itself and the reasons for it are clearly stated in Wise v. United States, 249 U. S. 361, 39 S. Ct. 303, 63 L. Ed. 805. Mr. Justice Clarke, who delivered the opinion of the court, said:

> ‘ ‘ The result of the modern decisions was determined to be that, in such cases, courts will endeavor, by a construction of the agreement which the parties have made, to ascertain what their intention was when they inserted such a stipulation for payment of a designated sum or upon a designated basis, for a breach of a covenant of their contract, precisely as they seek for the intention of the parties in other respects. When that intention is clearly ascertainable from the writing, effect will be given to the provision, as freely as to any other, where the damages are uncertain in nature or amount, or are difficult of ascertainment, or where the amount stipulated for is not so extravagant, or disproportionate to the amount of the property loss, as to show that compensation was not the object aimed at or as to imply fraud, mistake, circumvention or oppression. There is no sound reason why persons competent and free to contract may not agree upon this subject as fully as upon any other, or why their agreement, when fairly and understandingly entered into with a view to just compensation for the anticipated loss, should not be enforced.”

We are of the opinion that, tested by this rule, the agreement of the amount of $10,000 named in the contract in the case at bar should be treated as stipulated damages and not as a penalty. It is true that, according to the evidence for the defendants, the contract in question was not executed until after the deed for the land and the gin plant had been executed and delivered, and was entirely an afterthought on the part of the purchaser, and there was no consideration for it. On the other hand, according to the testimony of the plaintiff, the contract not to enter into the gin business in competition with *646him was a part of the consideration for the purchase of the gin plant from the defendants. The gin was an old one, and the plant itself was not worth more than $5,000. The plaintiff valued the good will of the business at $5,000, and, for this reason, agreed to pay $10,000 for the gin plant. The contract was to last for twenty years, and breach of it, in the very nature of thing’s, might be of frequent recurrence, and damages would be to some degree conjectural. The defendants might encourage or assist some one to enter into the gin business in competition with the plaintiff for a certain year, and the actual damage suffered might be small. However, if the plaintiff should bring suit for a breach of the contract, that would end the matter, and he could not bring a second suit if the defendants should, the next year or any subsequent year, induce others to set up a rival gin in the same place. As pointed out by this court, the status of the parties must be considered as of the date when they made the contract and not when it was breached. For this reason the reasonableness of the damages stipulated must be determined by the facts and circumstances at the time the contract was entered into, and the fact that no loss has in fact resulted from the breach of the contract does not affect the plaintiff’s right to recover. As .pointed out above, in making contracts in partial restraint of trade and stipulating for damages for a breach thereof, the seller has in view the obtaining the full value of the good will of his business in making the sale, and the purchaser has in view the right to protect himself in buying the' good will by preventing the seller from entering into competition with him. It is apparent that the good will would be at least materially lessened in value if the seller was at liberty to at once establish a rival business in the same place. Other cases holding that the amount stipulated in the contract as liquidated damages for a breach thereof which may be recovered in the event of a breach of the contract, even though no actual damages are suffered as a consequence of such breach, may be found cited in a case-note to 34 A. L. B. 134. Among *647the cases cited is that of the United States v. Bethlehem Steel Co., 205 U. S. 105, 27 S. Ct. 450, 51 L. Ed. 731, where the court approved the rule comprehensively stated and discussed in Sun Printing & Publishing Association v. Moore, 183 U. S. 642, 22 S. Ct. 240, 46 L. Ed. 366.

These cases hold that, if the contract provides for a definite sum as the liquidated or stipulated amount to be paid upon a breach thereof, then the amount so fixed, upon by the parties may be sued for; and it is not necessary for the plaintiff to prove any actual loss by reason of the defendants’ breach of the contract. All that is necessary to entitle the plaintiff, in such a case, to recover the stipulated sum, is to show the breach of the contract' upon which the payment thereof depends. In other words, the effect of a clause for stipulated damages is to substitute the amount agreed upon as liquidated damages for the actual damages resulting from the breach of- the contract, and thereby prevent a controversy between the parties as to the amount of damages.

The damages for a breach of a contract of this kind extend over a period of twenty years, and are uncertain, and, when the surrounding circumstances are considered,together with the purpose sought to be accomplished, -the' sum of $10,000 is not so extravagantly disproportionate to the damage which might result from the defendants entering into or aiding any one. else to enter'into the girt business in the territory named in the contract in competition with the plaintiff, as to show that the parties must have intended a penalty and could not have meant liquidated damages.

It is next contended that the evidence is not' legally sufficient to show that the defendants aided and assisted Thompson in setting up a rival gin in the town of Bose Bud, Kentucky Township. The testimony'oh this point" was conflicting, but the question was submitted to the jury on proper instructions. The evidence for the plaintiff, if believed by the jury, was legally sufficient to warrant a finding that the defendants' aided and assisted Thompson in setting up a rival gin in the territory *648embraced in the contract. According to the evidence adduced for the plaintiff, the defendants allowed Thompson to assemble his building material on their land and to pile upon, their land the wood which he used in operating the gin. The gin plant was erected within three or four feet of Thompson’s boundary line, and that it was apparent that the land of the defendants, which was next to it, must necessarily be used in unloading cotton at the gin. One of the defendants was there at the gin twice each day for fifteen or sixteen days during the erection of the gin. The jury might have inferred that he must have known these facts. In addition, he was seen to have frequent extended conversations with Thompson at the place where the gin was being constructed during the time of its erection. After the gin was put in operation, the defendants advised various persons to have their cotton ginned with Thompson, and said that it would be ginned cleaner by Thompson than by Plant.

The jury was instructed that the burden of proof was upon the plaintiff to show that the defendants in some substantial way aided or assisted Thompson in entering the gin business in the town of Rose Bud, and that, unless it should find these facts by a preponderance of the evidence, the verdict should be for the defendants. The evidence for the plaintiff is legally sufficient to sustain a finding by the jury that the defendants aided and assisted Thompson in setting up his gin and operating it, in violation of the contract.

The court also instructed the jury that, if the contract sued on was executed after the sale of the gin plant was consummated and was no part of it, then such contract was void, and the verdict should be for the defendants, in accordance with the principles of Kimbro v. Wells, 112 Ark. 126, 165 S. W. 645.

The respective theories of the parties to this lawsuit were fully and fairly submitted to the jury under proper instructions. It is urged, however, by counsel for the defendants, as a reason for a reversal of the judgment, that certain instructions asked for by the defendants *649were refused by the court. We do not deem it necessary to review these instructions or to discuss them separately, for the reason that, as above stated, in the instructions given at the request of the plaintiff and of the defendants, their respective theories were fully covered, and all disputed questions of fact were fairly submitted to the jury.

It is earnestly insisted, however, that the court erred in refusing' to give instruction No. 7 at the request of the defendants. The instruction reads as follows:

> “You are instructed that, if you find from the testimony that C. L. Thompson had used water from a public well that was open to the public, though situated upon the lands of the defendants, or either of them, in the construction and building of his gin, and if you further find that the same was used by and with the consent of the plaintiff and without objection from him, then this fact would not constitute a breach of the contract sued on herein, and your verdict' should be for the defendants.”

There was no error in refusing to give this instruction. This court has frequently said that the trial court is not required to single out facts and make the verdict of the jury dependent upon whether they are true or not. The jury might have found that the plaintiff did not object to Thompson using water from the well’situated in the park of the defendant and still thought that the contract had been breached in other ways, as testified to by the witnesses for the plaintiff, and that, on this account, the plaintiff was entitled to recover the damages stipulated, if there was a breach thereof.

We find no prejudicial error in the record, and the judgment will therefore be affirmed.

Kirby-, J., dissents.