Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1901-12-26
A NEWSPAPER SUIT
Nelson County Newspaper Litigation
is Decided by the Supreme
Ct Court Today. :
Contract to Abstain from Publishing
Newspaper Held to be Good by
Upper Court.
Salessof Goodwill Held by the Court
to be Implied, Under Details Of
Transaction.

On January 2, 1884, e. Mapes was the
owner Of a newspaper known as the
Nelson County News published at La
kota in Nelson county. R. L. Metcalf
and M. Metcalf were owners and pub
fishers of a newspaper known as the
Observer, published at the same place.
On the date mentioned above, the part
les entered into a written contract, in
which it was provided that if Mapes
would discontinue the Nelson County
News and discontinue job printing for
a term Of five years and agree not to
r~e-establish the News or any other
paper at Lakota, the Metcalfs would
agree to pay him one-half of all
moneys received by them for legal not
ments were to be made each month for
the moneys received for legals during
the preceding month. 1t was also
agreed that if at any time the Metcalfs
should make a bona fde sale of their
plant they should be allowed to COM
mute the agreement to the payment of
$3.50 per annum in cash to Mapes. In
November, 1895, Mapes claimed that
the Metcalfs paid him the last moneys
on his contract and refused to pay him
any fur sher sums. Mapes assigned
his cause of action to L. E. Mapes, who
brought suit in the action. The trial
found that Mapes had discon-
tir ned his paper and carried out his
agreement, and that he had also
turned over his subscription list to the
Metcalfs. But the trial court found
as a conclusion of law that the contract
in question was in restraint of trade
and was void and against public policy
and that no action could be maintained
thereon.
There were two appeals taken to the
supreme COURT. One was taken by
Mapes, who appealed from the decision
OF the trial court, Judge Fisk, that the
contract vas void. The defendants
also took a o appeal, with a view
no obtaining a review of the entire
case in the supreme court. This lat
ter appeal the supreme court says it
has no authority to hear, for the rea-
son that it dos not contemplate a final
judgment and disposition of the case,
and only in the latter event can the
supreme court hear a case de novo.
On the plaintiffs appeal, from the de-
cision of Judge Fisk that the contract
is void, the supreme court hands it's
decision, stating that it does not agree
with the conclusion reached by Judge
FISK. The court cites the revised
codes which state that one who sells
the good will. of a business may agree
With the buyer to refrain from carry
ing on a similar business within a
specified county, city OF part thereof so
long as the buyer or any person deriv-
ing title to the good will from him con-
tinues a like business therein. The
laws of the state also provide that the
good will of a business is property
transferable like any other property.
The court says that it has always been
lawful for the vendor of the good will
OF a business to refrain from conduct
ing a like business within a limited
territory provided that his agreement
to refrain shall be no more extensive
than is necessary to secure to the ven
dee the fruits of his purchase. The
supreme court finds that the whole
case hinges on the question as to
whether Mapes sold the good will of
his business to the Metcalfs, and they
hold that the facts; establish the fact
that he did make a sale Of good will.
The supreme court therefore reverses
the decision of the lower court, and
sends the case back for trial in the dis
trict court in the following syllabus
covering, the point OF legality of con-
tract: E~E%: w.. :
The purpose and legal effect OF Sec
ton 1927, Revised Codes, which au-
thorizes one who sells the good will of
a business to agree with the buyer to
refrain from carrying on a similar bus
mess within the specified county is to
except contracts in restraint OF trade
which are made in accordance with
said section, from the condemnation OF
illegality otherwise resting on such
contracts. It is necessary, however.
to the validity OF an agreement to re-
frain such as is authorized by said sec
ton that it shall be collateral and aux
Hilary to a sale OF the good viii OF such
business. Said section does not make
valid a bare agreement to refrain
which is unaccornpanied by a sale OF
the good will OF q business. One
Mapes who vas the proprietor Of a
newspaper and job printing business,
entered into q written contract with
the defendants who were the proprfe-
tors 81 rival newspaper and job print
II Srr htrnfxax.-e, Aa,.E $500 -, $50