1849. SAINTER V. FERGUSON. absolute (a), or for a definite time (b), or for a reasonable time (c): forbearance for a little (d), or for some time (e), is not sufficient." In Pilkington v. Scott (g) and Hartley v. Cummings (h), the agreements were held good, because the court could, on the face of them, collect an engagement on the part of the employers to employ the workmen. [Wilde, C. J. Is there not an undertaking to engage the defendant for a reasonable time, imported into this contract?] It is submitted that there is not: if it were, it would equally be so in the case of a forbearance to sue. Besides, the declaration here does not allege an engagement for a reasonable time. [Coltman, J. Were the cases as to forbearance for some time or a little time, cases after verdict?] Fisher v. Richardson came before the court on demurrer to the declaration; Johnson v. Whitchcott, on demurrer to a plea by the executor that he had no assets at the time of the making of the promise; Brooke v. Dowse and Tilston v. Clarke came before the court on writ of error(); and Mapes v. Sidney was a motion in arrest of judgment. [Cresswell, J. The agreement declared on is silent as to the terms or the duration of the engagement that is contemplated: there is no specific amount of salary agreed upon; nor does it appear whether the engagement is to be for a week or a year. The declaration avers that the plaintiff did engage the defendant, in pursuance of and according to the terms of the (a) Citing Mapes v. Sidney, Cro. Jac. 683. (b) Citing Fisher v. Richardson, Cro. Jac. 47. V. (c) Citing Johnson Whitchcott, 1 Roll. Abr. 24, pl. 33.; translated 1 Vin. Abr. 311. And see Payne v. Wilson, 7 B. & C. 423., 1 M. & R. 708. (d) Citing Brooke v. Dowse, 1 Roll. Abr. 23, pl. 25.; translated 1 Vin. Abr. 308. (e) Citing Tilston v. Clarke, 1 Roll. Abr. 23, pl. 26.; translated 1 Vin. Abr. 308. (9) 15 M. & W. 657. (h) Antè, Vol. V. p. 247. (i) And after verdict, according to the report in Cre. Car, 438.: as was also the case in Brooke (or Cook) v. Douse, suprà n. (d), and Cro. Car. 241. Would a agreement, that means, upon terms mutually agreed The learned judge miscarried in telling the jury that the 500% might be treated as liquidated damages, and not as a penalty. It is not unimportant to observe that the agreement itself uses the latter word only. This is not, therefore, like the case of Galsworthy v. Strutt. (a) In Crisdee v. Bolton (b), Best, C. J., in a similar case to this, left it to the jury to say what was the actual damage sustained by the defendant's breach of contract. WILDE, C. J. Where there is any reasonable ground for doubt, the party ought to have a rule to shew cause; but it is equally important not to introduce uncertainty by granting a rule, where there ought to be no doubt. It appears to me that this case falls within the latter predicament. The first question is, whether the agreement here was made upon a good consideration. In order to determine this question, it is material to attend minutely to the terms of the contract, which is as follows: "In consideration that J. D. Sainter, of Macclesfield, surgeon and apothecary, will engage me, the undersigned W. E. Ferguson, as assistant to him as a surgeon and apothecary, I, the said W. E. Ferguson, promise the said J. D. Sainter that I will not, at any time, practise, in my own name, or the names of any other person or persons, as surgeon or apothecary, at Macclesfield, or within seven miles thereof, under a penalty of 5001. And I, the said J. D. Sainter, do 1849. SAINTER v. hereby agree with the said W. E. Ferguson, to engage the said W. E. Ferguson, as an assistant to me as a surgeon and apothecary, on the terms aforesaid." In FERGUSON. Consideration that the plaintiff will engage the defendant as an assistant, the latter promises not to practise in Macclesfield or the neighbourhood; and the plaintiff binds himself to engage the defendant as such assistant. What are we to understand from that? It would seem that the parties were not prepared, at the date of the contract, to fix the period or the terms of the engagement, but left that to be matter for future discussion. The stipulation for the restriction of the defendant's practising at Macclesfield, or within the prescribed limit, was to have effect only when the subsequent definitive engagement should have been entered into. Supposing the plaintiff to be a person of skill and reputation, the very fact of his engaging the defendant as his assistant, would give the latter a great advantage as a rival; inasmuch as his being so authenticated, would naturally give him an opportunity of worming himself into his employer's connexion. An engagement, therefore, even for a short time, would be advantageous to the defendant, and detrimental to the plaintiff. But we must suppose that the parties contemplated an engagement reasonable in point of time and other circumstances. It may fairly be assumed that an offer of an engagement which was merely illusory, would be rejected by the defendant and in that case he would not be subjected to the proposed restriction. He therefore would have the means of protecting himself. The plaintiff contracts to enter into a reasonable engagement with the defendant; that is, in effect, to offer such reasonable terms as the defendant would be bound to accept. Looking at the contract, therefore, as importing an engagement which I will have the defendant's assent, and the declaration alleging that the plaintiff did, in pursuance of the agreement, engage the defendant as assistant, I think it dis closes a sufficient consideration. Consequently, the first objection fails. The next question is, whether the 500l. mentioned in the agreement is to be considered as liquidated damages or not. That is a question which has sometimes been left to the jury. That course was adopted by Best, C. J., in Crisdee v. Bolton. (a) But it is now clearly settled, that, whether the sum mentioned in an agreement to be paid for a breach, is to be treated as a penalty or as liquidated and ascertained damages, is a question of law, to be decided by the judge upon a consideration of the whole instrument. This agreement does not prohibit the defendant's doing several distinct and independent acts, each of which might be incapable of exact estimation: nor does it involve any of the circumstances that have, in any of the cases, induced the court to hold the sum to be a penalty only. The whole object of the plaintiff was, to protect himself from a rival; and it would be impossible in such a case to say precisely what damage might result to him from a breach of the agreement: it is not unreasonable, therefore, that the parties should themselves fix and ascertain the sum that should be paid. And I think we can only give effect to the contract of the parties, by holding the 5007. to be liquidated damages, and not a mere penalty, and, consequently, that there ought to be no rule. COLTMAN, J. As the law formerly stood, this declaration would have been bad; for, if the adequacy of the consideration were a matter to be looked at, it would be impossible to ascertain that without knowing the terms of the engagement. It is now, however, settled that the court will not inquire into the adequacy (a) 3 C. & P. 240. 1849. SAINTER V. FERGUSON. 1849. SAINTER V. of the consideration. That being so, all that is necessary, is, to see whether there is any consideration on the face of the declaration. I must confess I was someFERGUSON. What struck by the authorities referred to by my brother Channell, where forbearance of a debt for "some" or "a little" time, was held insufficient. But, in those cases, the court could evidently see that there was no contract for forbearance at all: whereas, here, the declaration distinctly avers that the plaintiff did, in pursuance and performance of the agreement, engage defendant as his assistant, according to the terms, true intent, and meaning of the agreement. That being pleaded over to, sufficiently imports that a definite engagement was entered into between the parties. That being so, it seems to me that there is nothing unreasonable in the restriction, and that there is a sufficient statement of consideration. As to the second point, I agree with the lord chief justice, that, although the word "penalty," which would primâ facie exclude the notion of stipulated damages, is used here, yet we must look at the nature of the agreement, and the surrounding circumstances, to see whether the parties intended the sum mentioned to be a penalty or stipulated damages. Considering the nature of this agreement, and the difficulty the plaintiff would be under in shewing what specific damage he had sustained from the defendant's breach of it, I think we can only reasonably construe it to be a contract for stipulated and ascertained damages. CRESSWELL, J. I am of the same opinion. I think now, as I thought at the trial, that the agreement contemplated that the defendant should be restrained from practising at or within seven miles of Macclesfield, not only during the time he might be acting as assistant to the plaintiff, but at any time; and that the contract is |