Thomas v. Gavin

Citations

• 15 N.M. 660
• 110 P. 841

Syllabus

<p>SYLLABUS (BY THE COURT.)</p> <p>1. An agreement not to engage in the business of buying and selling lumber in a certain town or its vicinity for two years in consideration of the purchase at stipulated prices of the entire .stock of lumber of the seller then on hand in the business in which the seller is then engaged in the lumber business', is not void as being in- restraint of trade.</p> <p>2. While a single sale of lumber would not in itself amount to engaging in the lumber business, it would be evidence on the question whether the seller was engaging in that business and in connection with other circumstances might furnish sufficient proof that he was so engaged.</p> <p>3. In an agreement for the sale of a stock in trade and-that the seller for a time abstain from engaging in the-business in which it was employed, there was a provision that a sum named should be considered liquidated damages .in ease of a breach of the agreement by either party to it. Held, that it was for the court to determine from the circumstances . of the case whether the sum named should be 'considered a penalty or liquidated damages. And the trial court having found actual damages- only instead of the stipulated sum, for a breach -of such a contract, it was at liberty,, in addition to its judgment for damages, to enjoin the defend^ant from further violating the agreement in question.</p>