Smith v. Bergengren
Massachusetts Supreme Judicial Court
Contract, on the following agreement under seal, dated October 17, 1872, signed by the defendant: “ Know all men by these presents, that I, F. W. A. Bergengren, of Gloucester, county of Essex and Commonwealth of Massachusetts, in consideration of twenty-five hundred dollars to me paid by J. R. Smith, of Wolf borough, New Hampshire, physician, the receipt whereof is hereby acknowledged, one thousand dollars cash, and fifteen hundred dollars in notes signed by said Smith and…
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Contract, on the following agreement under seal, dated October 17, 1872, signed by the defendant: “ Know all men by these presents, that I, F. W. A. Bergengren, of Gloucester, county of Essex and Commonwealth of Massachusetts, in consideration of twenty-five hundred dollars to me paid by J. R. Smith, of Wolf borough, New Hampshire, physician, the receipt whereof is hereby acknowledged, one thousand dollars cash, and fifteen hundred dollars in notes signed by said Smith and payable to me, do hereby sell, assign, and set over unto the said Smith the horse, carriage, harness, and appointments…
1Opinion of the CourtHolmes, J.
The defendant covenanted never to practise his profession in Gloucester so long as the plaintiff should be in practice there, provided, however, that he should have the right to do so at any time after five years, by paying the plaintiff two thousand dollars, “but not otherwise.” This sum of two thousand dollars was not liquidated damages, still less was it a penalty. It was not a sum to be paid in case the defendant broke his contract, and did what he had agreed not to do. It was a price fixed for what the contract permitted him to do if he paid. The defendant expressly covenanted not to…
2Cases cited4 opinions
- Ropes v. UptonMassachusetts Supreme Judicial Court · 1878
- Cushing v. DrewMassachusetts Supreme Judicial Court · 1867
- Pearson v. Williams' administratorsNew York Supreme Court · 1840
- Pearson v. Williams' AdministratorsNew York Supreme Court · 1841
3Cited by15 opinions
- White v. SolomonMassachusetts Supreme Judicial Court · 1895
- Earle v. CommonwealthMassachusetts Supreme Judicial Court · 1902
- Factory Realty Corp. v. Corbin-Holmes Shoe Co.Massachusetts Supreme Judicial Court · 1942
- Glynn v. MoranMassachusetts Supreme Judicial Court · 1899
- Miller v. California Trust Co.California Court of Appeal · 1936
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